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Constitution, Constitutional Law and Politics Bangladesh Perspective - Abdul Halim

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CONSTITUTION, CONSTITUTIONAL

LAW AND POLITICS : BANGLADESH

PERSPECTIVE
'01
la

MD. ABDUL HALIM

CCB FOUNDATION: LIGHTING THE DARK

CONSTITUTION, CONSTITUTIONAL
LAW AND POLITICS: BANGJ';: SH
PERSPECTIYf

MD. ABDUL HALIM

Barrister-al-Law (Uncclns ton)
I.L.M. (Newcastle-upon-Tyne, UK)
LLB., I.I.M. (Dhaka University)
Advocate, Supreme Cavil of Bangladesh

I
Published by:
CCB Foundation
Planners 'lower (Level-15, Suit No.2 & 3)
13/A, Sonargaon Road -
Dhaka- 1000

.411rights ale reserved. No pal-I of this publication ma y be reproduced or

transmitted in any /brm or b y any mnean.s without the iv,'i(len permission o/'the
publ:diei' or the au/ho,'. Any inquimy or inJbrmation should he made directly to
the author or the publisher.

First Published: February, 1998

Second Edition: September, 2003
Third Edition: March, 2006
Fourth Edition: March, 2008

ISBN 989-31-0108-1

Price : 11. 320.00 only

Distributors
CCB Book Centre Boi Academy Anupam Gyan Bhandar
Shop No. 61 12. Anderkilla 156. Dhaka Stadium
I slami a Market. N I khet Chittagong (1st Floor) Dhaka-1000
Phone: 0 17123 784 13 Phone: 01711-969835 Phone: 9557942
01190100746

Sams Publication University Law Book Centre

I slamia Market. Ni Ikhet 5, I Iaj rat Shah jalal Market
Dhaka- 1205. Rangladesh Nilkhct. Dhaka-1205
Phone: 01818-608818 Phone: 0 181 8-034620
To,,
My Primary, school Head Teacher
Md. Abdur Rahman g,RMP.UL 4IM4Jf
but for whose unstinted care,
attention, love, sacrifice and
blessing I would not have been
what I am today.
On the arduous road to get education in niv life the people who
niacle a lot of sacrifices Jor 177C are 111017.1, and their Contribution is
irreparable. At the advent (f1/is small work, which could not be
possible, but Jar their help I cannot but remember some of their
names with respect and gratefulness.

Md. Siddiqur Rahman

Mathbaria, Pirojpur.

Md. Yousuf All Khan

Mathbaria, Pirojpur.

All Ahmed
Bamna, Barguna.

Khan M.A. Sobhan

Mathbaria, Pirojpur.

Dr. Kazi Afifa Sultana

Department of Psychology (Dhaka College)

M.A. Khaleque (Sanu)

Sylhet. (Residing now in London)

Anwar Hussain Panchayat

Sharankhola, Bagerhat.

BCC Foundation
Now, Human Development Foundation, Dhaka.
PREFACE TO THE FOURTH EDITION

The continuing popularity of the first, second and third edition of this
book which was done out of my personal interest back in 1998 has
eventually persuaded me to produce this fourth edition. This updated
edition has been done keeping in mind the kea areas of developments of
constitutionalism in Bangladesh. In its second edition the book contained
the evaluation of the 7th parliament. The third edition contained the
evaluation of the 8th parliament. This fourth edition contains the
subsequent developments in constitutionalism in Bangladesh with
particular reference to the recent development of the concept of caretaker
government, full evaluation of the 8th parliament, military backed
caretaker government, the way forward of Bangladesh politics. Most of
the chapters have been updated with up to date information. Ordinance
Making Power of the President contains the most up to date data on
ordinance makin g vis-a-vis laws made by the parliament. The Chapter of
Caretaker Government contains the ongoing issue of reform proposals
undertaken by the sitting Caretaker Government. Women Members in
Parliament has new topics of 14th Amendment to the Constitution and
the Jatiya Sangsad (Reserved Seats for Women) Act, 2004 and its
ramification. In the earlier edition I stated, 'Though there are many
defects to point out with regard to the performance of the 8th parliament
and the BNP Government in its second term in power after the fresh start
of constitutionalism in Bangladesh, the practice of parliamentary
democracy is still in the process of development. However, the intolerant
and uncompromising attitude of the most political leaders has been the
most stumbling blocks to this development". However, in this present
edition I will have to say that this process of development of
constitutionalism has again been halted by the postponement of 9th
parliamentary election and declaration of emergency on 11th January,
2007 by the acting President. There are strong suggestions that like in the
past, this present political uncertainty is the result of the leadership crisis
among both the leading parties in the country. This book, however, does
not attempt to go into deeper discussion on stresses and strains into
politics in the country; the choice of the most of the topics is selective
and the aim is to offer students lucid treatment over politico-legal
problems on some of the central ideas in Constitutional law and politics.

The collection of various data and information has been facilitated by

Mr. Ali Akhar, Research Officer of the Bangladesh Parliament Library.
For information and assistance on particular queries, I am grateful to Mr.
Md. Abu Dawood, Director of the Bangladesh Parliament Library and
their staff for the sincere help I received from them. Rubaiyat Rahrnan, a
student of law from Dhaka University has helped me by collecting datas
and informations. Fourkan, my computer assistant has provided necessary
technical help.

I am gratefully indebted to Dr. M. Ershadul Ban, Faculty of Law,

Dhaka University, for I have shared some of his views expressed in
various lectures in the first edition of this book.

Last but not the least, this edition was to be done hurriedly and there
was not enough time to change the set-up, font and foot notes in the
book. The original works of the book done in an apple mackintosh
computer back in 1998 could not be transferred with the same font to a
recent version of Microsoft Excel and as a result there has been change in
the font and page set up and also in foot notes. In the next edition 1 hope
to do the whole work afresh.

The views and opinions expressed in this book are absolutely mine
except those which I have quoted. I do not claim that my views are
correct from every point of view. There may be shortcomings and wrongs
and I alone am responsible for those. If there are mistakes in facts or
otherwise I shall appreciate if readers come forward to have corrected by
me so that the second edition may be a better volume.

Md. Abdul Flalim

CONTENTS

Chapter-1
PRIMARY IDEAS OF CONSTITUTIONAL LAW 21-30
Public and Private Law 2!
Constitutional Law & Administrative Law 21
Substantive and Procedural Law 23
,-iqature of Constitutional Law 23
,Definition of Constitution 24
,Classification of Constitution 26
Constitution and Constitutional Law 30

,Chapter—II
METHODS OF ESTABLISHING CONSTITUTION
AND MAKING THE BANGLADESH CONSTITUTION 31-48
Constitution by Grant, Deliberate Creation.
Revolution and Evolution 31
The Establishment of the Bangladesh Constitution 33
,The Interim Constitution 35
,Constitution Making Process 37
,Salient Features of the Constitution 39
Some Flaws in the Constitution Making 43

Chapter-Ill
PREAMBLE TO THE CONSTITUT ION 49-56
What is Preamble 49
Preamble and the Operative Part of the Constitution 49
Recent Views on Preamble 50
Whether Preamble can be Amended 51
Significance of the Preamble 52
The Preamble to the Bangladesh Constitution 52
How far Objective enshrined in the Preamble have
been ensured in Bangladesh 54

Chapter-IV
CONSTITUTIONAL SUPREMACY 57-74
Parliamentary Supremacy and Constitutional Supremacy 57
Characteristics of Constitutional Supremacy 59
How can Supremacy of the Constitution be maintained 59
How is Constitutional Supremacy ensured
in the Bangladesh Constitution 60
How far Constitutional Supremacy has been
maintained in Bangladesh 62
Constitutional Supremacy and the Judicial Review 62
Who is to exercise the Power ofJudicia! Review
in a system of Constitutional Supremacy 64
Judicial Review in the sense of Parliamentary Sovereignty 65
Judicial Review in the USA 66
Judicial Review in the UK 68
Judicial Review in Bangladesh 72

iapter-V
FUNDAMENTAL PRINCIPLES OF STATE; POLICY 75-92
/What is Fundamental Principles of State Policy 75
,Nature of Directive Principles 76
Wh y Economic, Social and Cultural Rights are enumerated
in the Directive Principles of State Policy 77
/Distinction between Fundamental Rights and
Directive Principles 78
/Signiflcance of the Directive Principles 79
Conventions and Directive Principles 81
Directive Principles under the Constitution of Bangladesh 82
Fundamental Principles where to be applied 83
Short Description of the Fundamental Principles 83
Implementation of Fundamental Principles in Bangladesh 85
Judicial Decisions on Fundamental Principles 86
Bangladesh Supreme Court on Fundamental Rights 90

yliapter-V I
FUNDAMENTAL RIGHTS 93— 104
'Human Rights 93
4undanicntal Rights 95
)stinction between Human Rights and Fundamental
Rights 98
hforcement of Fundamental Rights 98
Constitutional Guarantees or remedies 99
Fundamental Rights in the Constitution of Bangladesh 100
Imposition of Restriction over Fundamental Rights 101
Suspension of Fundamental Rights during Emergency 104

Chapter-VII
AMENDMENT OF THE CONSTITUTION
OF BANGLADESH 105— 180
Summary of 14 Amendments 105
First Amendment 107
Second Amendment 107
Third Amendment 11
Fourth Amendment Ill
* Background
* It introduced a so-called presidential system
in place ol purl amentarv system
* It made the impeachment and removal
ofthc president unprcccdentcdly a difficult one
* It turned parliament into a powerless secondary
rubber-stamp body
* It took away the power 01 the I ugh Court Division
to en ftrce fundaniental rights
* It completel y curtafled the independence oljudiciar)
* lii ntroduced one party political system
* It buried the \hole concept of local government
* It undermined the spirit of liberal democracy in Bangladesh

REASONS BEHIND nil:

FOURTH MENDMENr
1IJIlVS POLILICS AN!) HIS 'SECOND RE\OLLTION' 131 -149
1uiiit'S SECOND REVOLLrFION AND ITS UNFINISHED PRSPE('IS
149-156
Fifth Amendment 156
* Background
* Changes made by the Amendment
* Merits of the Amendment
* Demerits of the Amendment

Nature of the Government System after the 5th Amendment 161

Sixth Amendment 162
Seventh Amendment 163
Eighth Amendment 164
Ninth Amendment 165
Tenth Amendment 166
Eleventh and Twelfth Amendment 167
* Background
* Film Parliamentary Election under the Acting
President Justice Sahahuddin Ahmed and the Problem
of Iransfir of power
* Subject-matter of the Eleventh Amendment
* The President Election of 1991 and the Return of
Justice Sahahuddin
* Changes introduced by the iwel Rh Amendment
Thirteenth Amendment 179
Fourteenth Amendment 179
Chapter-Vill
ANTI-DEFECTION LAW IN ART. 70 AND THE MYTH
OF PARLIAMENTARY DEMOCRACY IN BANGLADESH 181 - 196
Political Defection 181
Anti-Defection Law in Article 70 of the Constitution 183
Implication and Effect of Article 70 in the Politics
of Bangladesh 185
Scenario of Political Defection in East Pakistan 188
Defection within the Awami League 191
Comment and Suggestion for Article 70 194

Chapter-IX
RESPONSIBLE GOVERNMENT 197-200
Responsibility 197
Indirect Responsibility 197
Direct Responsibility 198
Individual Responsibility 199
Collective Responsibility '99
How far Responsible Government has been ensured
in the Bangladesh Constitution 200

Chapter-X
MINISTERIAL RESPONSIBILITY 201 —218
What is Ministerial Responsibility 201
Kinds of Ministerial Responsibility 202
Purposes served by the Principle of Collective
Responsibility 205
Difficulties with Collective Responsibility 207
Purposes served by Individual Responsibility 208
Difficulties with Individual Responsibility 209
Methods of Enforcing Ministerial Responsibility 210
Ministerial Responsibility and their Enforcement under
the Bangladesh Constitution 215

Chapter-XI
COMMITTEE SYSTEM IN BANGLADESH 219-234
IntrodUCtiOn 219
Different Types of ( ommittees 219
Evolution of Committee system 220
Advantages of Committee System 220
Committee System in Bangladesh 222
Structure of Committee System in Bangladesh 223
Three Financial Standing Committees 224
The Public Accounts Committee 215
Committee on Estimates 227
The Public Undertaking Committee 228
Departmental Standing Committees (DPCs) 228
Working of the DPCs and their Problems 229
Enforceability of Committee reports 233
How far can Courts Enforce Committee Report, Request and
234
Recommendations
Parliament vis-à-vis the courts 234

çhapter-X II
EGISLATION IN BANGLADESH 235-252
What is Legislation 235
Legislation Classified 235
Supreme or Ordinary Legislation 236
Subordinate Legislation 237
Special Executive Legislation 237
Masder Hossain Case and the Presidents
Rule Making Power 239
Status of Rule, Regulation and Order 240
Distinction between Delegated Legislation and Special
Executive Legislation 242
Subordinate Legislation in details 242
Subordinate Legislation in the USA 243
Subordinate Legislation in the UK 247
Conditions of Delegated Legislation 248
Subordinate Legislation in Bangladesh 249
Sources of Delegating Power under the Constitution
of Bangladesh 249
Need for Control of Delegated Law 250
Control over Delegated Law 250
Control over Delegated Law in Bangladesh 251

Chapter-XIIl
THE PRESIDENT: POSITION, POWER AND FUNCTION 253-262
The Status of the President 253
Qualification and Disqualification of the President 254
Election of the President 254
Term of Office of the President 255
Removal of the President 255
Powers and Functions of the President 257
Power of the President in CTG 262
,c1ipter-XIV
ORTANANCE MAKING POWER OF THE PRESIDE NT 263-278
iLlstification for Ordinance Making Power of the President 263
Ilistory of the Ordinance Making Power 264
Provisions of Ordinance Making in the Constitution of
Bangladesh 265
How an Ordinance becomes an Act of Parliament 266
Statistics of Law and Ordinances passed by Parliament 267
Demerits and Effect of Ordinance Making over
Constitutional ism in Bangladesh 272
Usurpation of the Function of the Legislature by the
Executive and the Role olthe Court 276
Where does the Real Problem lie? 277

Chapter-XV
EMERGENCY PROVISIONS 279-292
What is Etnergenc\? 279
Need for Emergenc y Provisions 279
Classification of Emergencies 281
History of Emergency Powers 283
Emergency Provisions in the Constitution of Bangladesh 285
When can the President declare Emergency 285
The Consequence of a Declaration of Emergency 286
The Misuse of Emergency Power and its Impact over
Constitutionalism in Bangladesh 287

Chapter-xv I
PREVENTIVE DETENTION AND THE SPECIAL
P9\VERS ACT, 1974 293-314
1flreventive Detention 293
Distinction between Preventive Detention and Punitive
Detention 293
Need for Preventive Detention 295
History of the Preventive Detention Law in the
Sub-Continent and Bangladesh 296
The Power of Preventive Detention Carries with it the
Risk of Abuse of Power 298
Law of Preventive Detention in Bangladesh and
Constitutional Safeguards for it 301
Demerits of the Preventive Detention Law and its
Impact over Constitutionalism in Bangladesh 305
Judicial Remedies ola Detenu under Special Powers Act
and the Bulwark of the Supreme Court against Illegal
Detentio- 307

Chapfi
EN MEMBERS OF PARLIAMENT ' 315-322
General Women Members and Special Women
Members of Parliament 315
Background of the Women Members Reserved
Seats in Parliament 315
Mode of Election in Women Members Reserved Seats 315
Justification for the Women Members Reserved
Seats in Parliament 316
Thinking for an Alternative to ensure Women Representation3 19

Chpt<c1ll
,yOtUDSMAN 323-338
Definition, Origin and Development 323
Why was the Institution created? 325
How far has Ombudsman been an Effective Citizens'
Watchdog in Various Countries 326
Categories of Ombudsman 328
Mode of Appointment 329
Method of Work 330
Why is an Ombudsman must for Bangladesh? 331
Law and Constitutional Provisions for Ombudsman
in Bangladesh 335
How effective would the Act be if Implemented 336

Chapter-XIX
THE JUDICIARY 339-406
Philosophy Underlying the Formation of Judiciary 339
The Independence of Judiciary 339
Four Meanings of Judicial Independence 341
Conditions for Independence of Judiciary 342
How far is Judiciary Independent in Bangladesh 348
Independence of the Higher Judiciary 348
Consultation with the Chief Justice and the Politics in the
Appointment o! 'udges 349
Politics of Supersed i ng and the Appointment of the CJ 353
How tomaLe Appointments more Rule-oriented 357
Accountability of the Higher Judiciary 359
The Independence of Lower Judiciary 360
Constitutional isation of Magistrate Courts and controversy
with their separation and independence 361
Drafting the Constitution and the question of separation
of Lower Judiciary 363
Law Commissions recent recommendation 364
Will the restoration of the original constitution ensure
separation of lower judiciary 366
Accountability of the Lower Judiciary 371
A Brief History of Separation of Judiciary in Bangladesh 372
Masder Hossain Case in 1999 375
Implementation of the Judgment in Mcisder 1-lossain Case 377
The Judicial System of Bangladesh at a Glance 379
The Supreme Court of Bangladesh 380
Powers and Funcj.osf the High Court Division 380
Ordinary J iction ofthJ-ig h Court Division 380
Conct a] Jurisdi9Xioof the High Court Division 381
Wr * sdiction 381

HabsCorpus
Mandamus
* Prohibition V
* Certiorari
* Distinction between ertiorari and Prohibition
* Quo Warranto
* The names of various writs have not been used in
article 102 but true contents of each of the Nwits
have been set out in self-contained proposition
Writ Jurisdiction, Public Interest Litigation (PIL)
and the Concept of 'Aggrieved Party 389
Breaking the Barricade 393
Jurisdiction as to Superintendent and Control 395
Nature of Supervisory Jurisdiction 395
Distinction between Writ power and Supervisory power 396
Jurisdiction as to Transfer of Cases 397
The Appellate Division: Power and Function 398
,CnstitutionaI Jurisdiction of the Appellate Division. 398
* Appellate jurisdiction
* Jurisdiction as to issue and execution process.
of
* Reviewj urisdiction
* Advisory jurisdiction
Problems 500
The Speaker in the 8th Parliament 504
The BNP led 4 Party Alliance Rule 505
Failure of the BNP 506
Second Start of Constitutionalism halted by Military 509
Military backed CTG in 2007 and Aftermath 512
• Emergency and Arrest of people
• Minus- Two Formula
• Formation of National Government
• The National Security Council
• Election Commission separated
• Truth Commission

Election Commission under political Storm 470

• CTG under professor 1)r. Tajuddin Ahmed
• Constitutionality of la1uddm as Chief of CT(;
• lajuddin as Chief Adviser and affairs of the CTG
Problems with Caretaker Government 481
90 days embargo in the Constitution 483
GIG backed by Military led by l)r. Fakhruddin Ahmed 483

Chapter-XX IV
CONSTITUTIONALISM IN BANGLADESH:
ITS START AND PROBLEMS 485-536
Constitution and Constitutional ism 485
The Weary Way to Constitutionalism from the
Sub-Continent to Pakistan 487
The Start of Constitutionalism in Bangladesh and its
Problems 488
Military Rule and the Myth ol Constitutional ism in
Bangladesh 498
Second Start of Constitutionalism in Bangladesh and its
C haptcr-X X
RULE OF LAW 407-420
History of Rule of Law 407
Diceys Theory of Rule of Law 409
Criticism of Diceys Theory 410
Rule of Law in True and Modern Sense 412
Provisions for Ensuring Rule of Law in Bangladesh
Constitution 416
Provisions of the Constitution which are Contrary the
Concept of Rule of Law 417

Chapter XXI
THE EIGHTH AMENDMENT CASE AND THE DOCTRINE
OF BASIC STRUCTURE OF THE CONSTITUTION 421-436
Background of the Case 421
The Constitution (8th Amendment) Case 423
Principal Arguments by the Appellants 423
Principal Arguments by the State 424
Principal Arguments of the Judgment 424
The Doctrine of Basic Structure 426
Problems of the Doctrine of Basic Structure 430
Philosophy Underlying the Doctrine 433
Types of the Doctrine of Basic Structure 434

Chapter-XXII
MARTIAL LAW AND MILITARY INTERVENTION:
A POLITICO-LEGAL ANALYSIS 437-454
Origin and Development of the Concept of Martial Law 437
Different Meanings of Martial Law 439
Martial Law in Universal Sense 443
Martial Law in Proper Sense 443
So-called Martial Law 443
Martial Law and the Doctrine of Necessity 444
So-Called Martial Law, Courts, Doctrine of Efficacy
and the Doctrine of Necessity 44.6
Doctrine of Efficacy 446
Overruling of the Doctrine of Efficacy 449
Doctrine of Necessity 449
The So-Called Martial Law and the Role of the Judges 450
So-Called Martial Law in Bangladesh 452
Malik Mir Hassan V. State .451
Mar bury V. Madison (1903)I Cr. 137 . 65, 66, 432
Mascler Hossain case 52 DLR 82 .............................................. 350-360
Meer Singh V. Emperor AIR 1941 Allahabad 321 ............................................. 310
Mitchell V Harmony 13 (Wall)(VS) 115 .............................................. 445
Minerva Mills Ltd V. Union of India 19803 SC ............. ... .... ........... 86-88,89,429
Mnhsiri Sharjf V Govt 27 DLR 186 ........................................................ 312
Monoranian Muklierjcc V. Election Comission 41 DLR (I lCD) ........................... 454
Muskrat V. Us (1911)1. Ed. 246. 252 ......................................................383
Nagra)V.A P, AIR 1985SC557 .............................................. 237
Naravande}u V. Labour Appellate Trbunal AIR 1957 ..................................... 396
Nasir Kader Siddiqui V. Bangladesh 44 DLR (AD) ...................................... 454
Nasiruddin V. Bangladesh 32 DLR (AD) ...................................................... 454
National Broadcasting Co. V US (1943) 319 US 190 ................................ 246
Nazrul Islam's Case ........................................................................... 320
Orisa V. Muralidhar AIR 1963 SC ............................................. 396
Panama Refining Co. V. R yan (Hot oil case) (1934) 293 US 388 .................................. 246
Parharnent Secretariat v. Khandaker Deiwar Ilossain 19 ltl.t)(.\1)) 276 .................. 196
Powell V Kempton Park Race Course Co 1899 AC 143 ................................ 50
Princes' case 8 Co. Pep. I a (1606) ....................................................... 68
Presidents Secretariat V. Mahtabiiddjn Ahmed 42 1)1.1k (AD) 214 ..................... 454
Prohhakar Keshee Tare and others V. EmpeA1R 1943 Nagpur 26 ............................. 310
Professor Nazrul Islam V. Bangladesh 52 DL.R 413 376
Rain Krishna Bhardv.aj V. State of Delhi, --- .. ..... 306
............ ........................
Radhakanta V DeputvCornmissoner 31 DI.R 352 .......................................... 319
Re [Icruhari Union and Exchange of Enclaves AIR 1960 SC 845 50. 383
Re Delhi Laws 1912 case AIR 1951 SC ...................................................... 248.402
P.c Estate Duty, AIR 1944 PC 73 ......................................................... 401
Re Kerala Education Bill AIR 1958 SC 956 ............................................ 50, 86. 402
Re the Sea Customs Act in 1962 AIR 1963 SC 1760 ................................................... 402
Re Presidential Poll in 1974 AIR 1974 SC 1682 ...................................................... 402
R.V. HalOday 1917 Ac 260 ........................................................ 247, 279, 295
R.V. Ndholvu (1964)4 S.A.L.R ........................................................ 449
RV. Blackburn (1973) QB 241 ......................................................... 392
R. V. GIL' exparte Blacknurn (1976)1 WLR 550 .......................................... 392
R. V. Commissioner of Police of the Metropolis ................................................. 392
R. V. Nelson and Brand ......................................................................... 414
Sankary Prasad (1952) SCR 89 ............................................................... 86
Schechter Poultry Corpn V. US (Sick Chicken case) (1935) 295 US 495 ...................... 41.246
S P. Gupta V. India AIR 1982 SC 390
Starling V. Constantine 287 US 378 (1932) .................................... ......... . . 96,424,442
State V. Dosso PLD 1958 SC ............................................... 92, 424-432
State of U.P.V. Auqua Begtim 1052 FCR 110 ............................................... 266
State of [3iher V. Kameshwar AIR 1952 SC ........................................ 78
Sultan Ahmed V. Chief Election Commissioner 30 DLR (IICD) ............................ 454
1ariq Transport V. Sargodha-Vera Bus Service II DLR (SC) ............................ 372
The Special Court Reference Case in 1978 AIR 1979 SC 47$ .......................... 383
The Special Reference No.1 of 199547 DLR(AD) 1995 383
Trimbak GangadharV Ramcharan AIR 1977 SC 1222 ................................. 396
Uganda V Commissioner of prisoner. ................................................ 449
Unni Krishnan V. State ofA P. AIR 1993 SC 2178 ....................................... 90
USA Vi Butler 297 US 1(1936)
USA V. Chicago M.st. PP. R Co (1931) 282 US 311 246
Vauxhall Estates Ltd V Liverpool Corporation 71
Vcnkata Reddy V. A. F' AIR 1985 SC 724237
Virginia Stale Board of Education V I3urnette 91
Waman Rao V Union of India AIR 1980 SC 1789 429
Waryani Sin g h V. Ainarnath AIR 1954 SC 396
West Virginia State Board of Education V Barnette 319 US 638 . . .96
Yakus V. US
246
Zabrivskv V. General Officer 1947 All C 246 . . 364
LIST OF ABBREVIATION
AL) : Appellate Division
APSU All Party Students Organisation
AL : Awanii League
BILIA Bangladesh Institute of Law and International Affairs
BNP Bangladesh Nationalist Party
CA Chief of Advisers
CAC : Centre for Analysis and Choice
CAG Comptroller and Auditor - General
CBA Collective Bargaining Agency
CTG : Caretaker Government
CL-IT : Chittagong Hill Track Treaty (Agreement)
CMLA Chief Martial Law Administrator
CPA : Commonwealth Parliamentary Association
CPB Communist Party of Bangladesh
CSP : Civil Service of Pakistan
DC : Deputy Commissioner
DCMLA Deputy Chief Martial Law Administrator
DEO : District Election Officer.
DPC Departmentally-related Parliamentar y Committee
EPAL East Pakistan Awami League.
FDC : Film Development Corporation.
1-LCD : High Court Division.
JI .Iamat-j-fslami J3anladcsh.
JJ) : Jatio Party.
JSD(Siraj) : Jatio Samajtantrik Dal.
KSP Krishak Sramik Pary (Peasants and Workers Party)
MNA : Member of National Assembly.
MPA : Member of Provincial Assembly.
PAC : Public Accounts Committee
PIL Public Interest Litigation.
PM : Prime Minister.
PMQT Prime Minister's Question lime.
PUC Public Undertakings Committee
PSC Public Service Commission.
Constitution, Constitutional Law and Politics 21

CHAPTER I

PRIMARY IDEAS OF
CONSTITUTIONAL LAW
To have a complete idea about constitutional law one should
have a basic knowledge about other general laws in a country. All
existing laws of a country may be, for the convenience of study and
research, classified into two categories: Public Law and Private
Law.

4ublic Law: Public law determines and regulates the

organization and functioning of the state and determines the
relationship of the state with its subjects. The test of public law
depends upon the nature of the parties in the relationship in
question; if one of the parties is the state, the relationship belongs to
public law. Thus constitutional law, criminal law, administrative
law etc. are the forms of public law. Public law has many branches
such as, Constitutional law, Administrative law, Criminal law, Tax
law, etc.

For the purpose of this chapter it will be convenient to discuss

only two important divisions of public law - constitutional law and
administrative law.

'Constitutional Law: Constitutional law actually forms the

backbone of public law It is that branch of public law which
determines the nature of the state, nature and structure of the
government-its powers, functions, division of powers among
different constitutional organs, their relationship to each other and
above all the relationship between the state and the individuals.

''Administrative Law: LFrom a broader point of view

administrative law is a part of constitutional law. The difference
between the two is really one of practical convenience only.
Administrative law is that branch of public law which deals with
22 Primary Ideas of Constitutional Law

how the administration is controlled and made accountable .,) It

determines the powers and duties of administrative authorities, the
procedure followed by them in exercising their powers and
discharging the duties and the remedies available to an aggrieved
person when his rights are affected by an action on the part of such
authorities.

It is one of the common features of the continental legal

systems' that they maintain a distinction between constitutional law
and administrative law. Common law legal systems, from the view
point of their inherent traits, do not maintain this distinction. But in
recent time there has been a growing tendency to draw a distinction
between constitutional law and administrative law.

Though the distinction between constitutional law and

administrative law is on marginal point, for better understanding of
constitutional law tudent must keep in mind this marginal
distinction. W.,thL constitutional law deals with the basic
principles outlini g the structure, powers and functions of the
principal compo ent organs of the government e. g. the executive,
legislative and udiciary and other constitutional bodies like the
Election Comi ission, public Service Commission, Comptroller
and Auditor G neral etc., the administrative law deals in detail with
the resi ml owers and functions of the administrative authorities
of various departments of the government. For example, how the
composition of the Executive, Le g islative and Judiciary would be.
what would be their nature, what basic functions they would
discharge-all these are subject matters of constitutional law. But the
residue powers and functions of all officials of these departments,
their duties, their control, their salaries, office agenda, settlement of
disputes-etc. are the subject matter of administrative law.
According to Maitland, 2 while constitutional law deals with

Continental legal system i.e. civil law system is used as opposed to common law
system. Continental legal systems include the legal systems of France. Germany. Italy
etc.
2 Const i tutional History. 1955, quoted by Takwani. C.K.
Lectures on Administrative
Law, 2nd ed. P.13
Constitution, Constitutional Law and Politics 23

structure and the broader rules which regulate the functions, the
details of the functions are left to administrative law.

Private Law: Private law is that branch of law which

determines and governs the relations of citizens with each other. In
the domain of private law parties are private individuals and the
state, taking the position of an arbitrator, through its judicial organ
adjudicates the matters in dispute between them. Law of contracts,
torts, of property etc. are examples of private law.

bstantive Law and Procedural Law

Both public and private law may be substantive law or
procedural law. When a particular law defines rights or crimes or
any status, it is called substantive law. For example, penal law, law
of contract, law of property etc. are substantive laws. When a
particular law determines the remedies or outlines the procedures of
litigation, it is called procedural law e.g. Civil Procedure Code,
Criminal Procedure Code etc. The distinction between the
substantive and procedural law is not an easy and clear-cut one. The
same law may be procedural as well as substantive)

Nature of Constitutional Law

The above discussion of different national laws may give an
impression to the readers that constitutional law has got the same
status as other laws; it is not in any way superior to any other law.
This is the fact in countries where the constitution is an unwritten
one. Where the constitution is unwritten and flexible there cannot
be any distinction between fundamental law and ordinary law. In
Britain parliament being the supreme law making body and the
constitution being, unwritten and flexible, parliament can amend any
constitutional law by ordinary law making procedure and hence
constitutional law exists on the same footing with other laws of an
ordinary nature.

On the other hand, where the constitution is written and rigid,

the constitutional law has a different nature. Here the constitution is

Sce. Salmond.Jurisprudeflce, 10th ed, 1 1 . 461

24 Primary Ideas of Constitutional Law

considered the supreme or fundamental law of the land. It is

supreme law in the sense that on point of statusit is placed above
all the laws: no law is above the constitution; and all ordinary laws
get their validity and force from the constitution; no law can be
nconsistent with the constitutional law.
"Constitutional law locates sovereignty within the state and thus
indicates the source of law."' And this is why constitutional law is
considered the touch-stone or yard-stick to test the validity of all
other laws, be it public or private, substantive or procedural.

Thus if the constitutional law is considered the supreme law of

the land, then all laws of a particular country may be classified into
two broad categories;
A. Constitutional or Fundamental Law; and
B. Ordinary Law.

All administrative, substantive and procedural laws come under

the category of ordinary law. All laws except constitutional law are
called ordinary law because they can be made and amended by the
ordinary law-making procedure. And secondly, no provision of
these laws can be inconsistent with the constitutional law.
Constitutional law is considered of special sanctity. It is alterable
not by any ordinary procedure but by a difficult procedure like two-
thirds majority, three-fourths majority etc.

Definition of Constitution
State is a political organization which is administered by a
group of persons known as the government. When we say the
government of a state, it means basically the executive, the
legislative and the judiciary. But this government cannot run the
state according to their whim and capriceThere has to be certain
rules and principles on the basis and under the authority of which
the government can run the state. This set of principles is called the
Constitution. A Constitution is called the governing wheel of the

Gcttel. R.G, Political Science, Revised ed, (Calcutta : The World Press Private Ltd.
1950). p.184
Constitution, Constitutional Law and Politics 25

state, for without it anarchy would result in the administration of

the state. Thomas Paine rightly remarks-"Government without a
Constitution is a power without a right) A modern state, therefore,
cannot be thought of without a ClWstitution, be it written or
unwritten. But how have the writers defined the term constitution?
Like many other terms in political science, the term "constitution"
has been variously defined by different writers according to the
varying conceptions which they hold as to what a Constitution
should be.

Aristotle defines a Constitution as "the way of life the state has

chosen for itself". Such a definition is very ancient and no clear
characteristics of a Constitution can be found in it.

1According to C.F. Strong-"A Constitution may be said to be a

collection of principles according to which the powers of the
government, the rights of the governed and the relation between the
two are adjusted." Strong's definition is more or less a defectless
one.

"According to Lord Bryce-"Constitution is the aggregate of laws

and customs under which the life of the state goes on". This
definition by Bryce is a narrower one. Because being influenced by
the constitutional system of Britain Bryce has defined Constitution
as an aggregate of customs. But it is the fact that except Britain and
New Zealand nowhere in the world a Constitution can be found
which can be said to be an aggregate of customs.

Some writers have defined Constitution in wider sense. Among

them K.C. Wheare, Hood Phillips and Gilchrist are mostly referred.
According to them the term "Constitution" is used to denote all
written and unwritten principles regulating the administration of
the state.

Strong. C.F. Modern Political Constitutions, (London : ELBS. 1970), P. II

26 Primary Ideas of Constitutional Law

Again, some have defined Constitution in narrower sense.

Among them are Thomas Paine and Dc Tocqueville. According to
them Constitution means the aggregate of only those written
principles which regulate the administration of the state. According
to them if the Constitution cannot be produced in a visible
document. it cannot be said to be a Constitution at a] I.'

'I
This second group of writers has been found to be wrong. This
is because in true sense, Constitution is a body of rules written or
unwritten which determine the organization of the state. the
distribution of powers within the principal organs of the
government and the relation between the government and governed.
British Constitution is unwritten but many important parts of it are
written e.g. Magna Carta, Bill of Rights, Petition of Rights etc.
Similarly though the US Constitution is written, some important
governmental matters are unwritten. For example. cabinet system,
political party, committee system of the Congress etc. important
elements of the US constitutional system are unwritten.

VC'1assifjcation of Constitution
Constitutions are widely classified into t categories, firstly
written and unwritten and secondly, rigid and flexible.

Written and Unwritten Constitution

written constitution is one in which the fundamental
principles concerning state administration are embodied and which
has. as a specific document, been passed by a specific body. So a
written constitution can he produced and shown as a single
document. The US Constitution, Indian Constitution, Bangladesh
Constitution provide examples of written Constitution. On the other
hand, where the constitution has not been passed formally as a
specific document by a specific body and the fundamental
principles concerning state administration exist in political customs,

Sec. Zink, I larold. Modern (5overninenls 2nd ed. (New York: 0. Van Nostrand
Company. 1983). P.1%
Constitution, Constitutional Law and Politics 27

judicial decisions and in some scattered documents, the constitution

is an unwritten one. The British Constitution provides the glaring
example of unwritten con St]tL[tiOjn Views, of course, are expressed
by different writers that this classification of Constitution (written
and unwritten) is not a scientific one since no Constitution can, in
practice, be fully written or unwritten. An unwritten Constitution
must have some written elements. Likewise, a written Constitution
cannot be full written; some elements of it exist in unwritten form.
For example, British Constitution is unwritten but some important
elements of it are contained in written documents like Magna Carla.
Bill of Rights, Petition of RightAct of Settlement etc. On the
other hand. the US Constitution is written but some important
constitutional subjects like political party organization, cabinet,
committee of the Congress, working procedure of the Congress etc.
are not written; they are largely based on political custom or
convention. Likewise Bangladesh Constitution is a written one but
political party organization, appointment of Chief Justice,
formation of coalition government etc. are not written; these are
based on convention. This is why it is said that the distinction
between written and unwritten Constitution is one of degree rather
than of form. C.F. Strong comments that a classification of
Constitutions oil basis of whether they are written or unwritten
is illusory. It is, of course, sometimes necessary to distinguish
between the so-called written and so-called unwritten Constitution,
and. whenever we need to do so, we shall refer to the former as a
documentary and to the latter as a non-documentary Constitution.'

Rigid and Flexible Constitution

he distinction between a flexible and rigid Constitution rests
upon the method by which the Constitution may be changedThe
Constitution which can he amended by ordinary law making
procedure is called a flexible Constitution. Ordinary law-making
procedure means making law by simple majority which is possible
by a majority of the votes of the members present and voting. All
ordinary laws (Acts of parliament) of the country are passd by this
process. For example, British Constitution is flexibIe This is
because there is no distinction between ordinary and constitutional

Strong. C. F, Modern Political Constitutions , Ibid. 11.67

28 Primary Ideas of Constitutional Law

law in Britain. The British Parliament is supreme and it can enact or

amend any law, be it ordinary or constitutional in nature, by
ordinary law making procedure and it never needs to adopt any
special procedure.

On the other hand, the Constitution which cannot be amended

by ordinary law making procedure but a special procedure (like
two-thirds or three-fourths majority) is needed, it is called a rigid
Constitution. A rigid Constitution is considered the supreme law
and regarded as a sacred document. The parliament cannot amend it
going beyond the Constitutional limitation; nor can it make any law
contrary to the Constitution. This is why where there is a rigid
Constitution; there exists clear distinction between the
constitutional law and ordinary law. Constitutional law can be
amended only by a special or difficult procedure whereas ordinary
law can be made and amended by ordinary law making procedure.
So in case of rigid Constitution Constitutional law stands over and
above ordinary laws and no ordinary law can be inconsistent with
Constitutional law. To quote C.F. Strong 'there are four methods of
constitutional amendment in use among states with rigid
constitutions; firstly, that by the legislature under special
restrictions; secondly, that by the people through a referendum;
thirdly, that method peculiar to federal states where all or a
proportion of, the federating units must agree to the change; and
fourthly, that by a special convention for the purpose')

For example, the US Constitution is a rigid one. The

amendment procedure of the US Constitution is a complicated one.
There are two modes of amendment for the US Constitution. The
usual and mostly used method is- two-thirds of the both Houses of
the Congress (the Senate and the House of Representatives are
collectively called the Congress) can propose amendments to the
Constitution and if this proposed amendment is consented by the
legislatures of at least three-fourths states, then the amendment
becomes effective. The most difficult mode is following: The
legislatures of the two-thirds states may petition to the Congress to

Strong. C.F. Modern Political Constitutions, (London: IiLBS. 1970), P. 140

Constitution, Constitutional Law and Politics 29

call a convention to propose amendments to the Constitution. When

such a request is made by the state legislatures, the Congress calls a
National Convention. This Convention passes a resolution for the
amendment to the Constitution. If this resolution is ratified or
consented by a convention of three-fourths of states, the
amendment becomes effective.

Likewise the Constitution of Bangladesh is a rigid one. Under

the provisions of the Constitution of Bangladesh normally two-
thirds majority in the parliament is essential for making an
amendment effective. Again, if the proposed amendment contains
any provision of articles 8, 48, 56 or 142, then referendum is
essential even after such an amendment bill has been passed in the
parliament by two-thirds majority.

It has, of course, to be taken into account that an unwritten

Constitution is in practice flexible but a written Constitution is not
necessarily rigid; it may sometimes be flexible in practice though its
nature tells it to be rigid. The Constitution of New Zealand is
written but it is entirely flexible.' It is also the fact that among
modem states of any importance there are only two in which
Constitution is flexible and these states are UK and New Zealand.
And New Zealand is most probably the only state which
Constitution is written but flexible.2

While discussing Constitutional law in this book I would, off

and on, refer to the US Constitution and British Constitution since
these two Constitutions in the world are most ancient and
developed. Now the smallest Constitution in the world is that of

See Wheare, K.C, Modern Constitutions. (London: Oxford University Press. 1975), P.
31
See. Strong. C.F. ibid. P. 142. It is noteworthy here that professor Hood Phillips
writes in his book that the Constitution of' Singapore is \Titten but it is flexible; this
information is wrong because Article 5 of the Singapore Constitution states that a bill
seeking to amend any provision in the Constitution shall not he passed b y parliament
unless it has been supported by the votes of not less than two-thirds of the total
number of the members thereof. Again. Article 8 provides for referendum l'or
amendment of certain provisions.
30 Primary Ideas of Constitutional Law

United States which was adopted in 1787 and was given effective
in 1789. It had only 7 Articles initially. Within 204 years 26
amendments were passed and 20 new Articles have been added. So
now the total Articles are 33 in the US Constitution. The largest
Constitution in the world is Indian constitution which was adopted
in 1949 and became effective in 1950. It had originally 395 Articles
and 12 Schedules.

Constitution and Constitutional Law

Is there any difference between the Constitution and
Constitutional law? Like the term 'Constitution' it seems that the
term 'Constitutional law' may be used in two senses -
Constitutional law in strict sense and Constitutional law in general
sense. When the term is used instrict sense, it means those
provisions of the Constitution which are enforceable by the court of
law since law as such in positive sense nieans those rules which are
enforceable in a court of law. In this sense preamble to the
Constitution, fundamental principles of state policy etc. are not
Constitutional law since the court cannot enforce them although
they are inseparable part of a written Constitution. For the same
reason none of the non-legal rules or conventions grown out of
Constitutional necessity (in case of a written Constitution) are part
of Constitutional law.

On the other hand, when the term Constitutional law' is used in

general sense, it includes all the provisions of the Constitution, be
they enforceable in the court or not, plus all other non-legal rules or
conventions. Thus when the term 'Constitutional law' is used in
strict sense Constitutional law is less than the Constitution itself
and when the term is used in general sense, it is more than the
Constitution itself.
Constitution, Constitutional Law and Politics 31

CHAPTER 11

0)
METHODS OF ESTABLISHING CONSTITUTION
AND MAKING THE BANGLADESH
CONSTITUTION
History shOws four methods by which modern states have
acquired their Constitution. These are by grant, by deliberate
creation, by revolution, and by gradual evolution.'

'Constitution by Grant
1t is a historical fact that most modern states began with
autocratic governments in which all political authority and power
was vested in the absolute hand of one ruler. Later, either because
the ruler believed that the powers of the government and the
manner of their exercise should be defined in a more formal way or
because of the demands of his subjects and the fear of revolution,
the absolute ruler promulgated a formal document in the form of
charter or constitution in which he agreed to exercise his powers in
accordance with certain rules laid down in it. Such charters or
constitutions are called constitutions by grant. For example, charter
granted by Louis XVIII in France, by Napoleon, by the emperor of
Japan etc. were constitutions by grant. It is to be noted here that
professor Garner has described this type of Constitution as octroyed
Constitution2

Constitution by Deliberate Creation

' fhrough deliberate creation a constitution may be found in the
following two ways:
'y Constituent Assembly; or
3'By Legislative Assembly3
After the establishment of a new state it arranges a Constituent
Assembly by the elected representatives with a view to making a

Sec. (3cttcL R.C. political Science. Ibid. P.249

2 Garner. James Will-ord. Political Science & Government, (Calcutta: The World Press
Private Lid. 1935). P.466
3 Garner. James. Ibid. P.467
32 Making the Constitution of Bangladesh

new Constitution. Such an Assembly makes a new constitution

through a long debate and discussion and once it has completed its
task, it automatically dissolves. The Constitution of USA is an
example of this method. Likewise in 1947 India and Pakistan
achieved their long cherished independence and following this they
established Constituent Assemblies to frame Constitution.
Accordingly Indian Constituent Assembly adopted the Indian
Constitution in 1949. Bangladesh through nine months liberation
war achieved its independence in 1971 and in 1972 it adopted its
Constitution through a Constituent Assembly which will be
discussed later on in this chapter.

Again, there are a few examples of written constitutions which

have not had their source in Constituent Assemblies, but have
emanated from ordinary legislative bodies. For example, the
Government of India Act, 1919 and that of 1935 in British India
acted as the Constitution of the country. But these two
Constitutions were only two simple Acts of the British Parliament.
Likewise, the constitutional laws of Austria prior to the present
constitution were nothing but statutes enacted by the parliament.
The Irish Constitution of 1922 is also an Act of parliament. The
Canadian Constitution is also an Act of British Parliament (the
British North America Act, 1867).

by Revolutiá'
Constitution by
a-Another usual method of establishing a Constitution is by
internal revolution. This occurs when people become dissatisfied
with the existing form of government and are not able to change it
in a legal manner)When a government turns into a tyrannical one
and it began its oppression against subjects, the people of the
country, finding no legal way out, overthrow the government
through revolution unconstitutionally and establish a revolutionary
government and this revolutionary government creates a new
Constitution.

Again, a government may be overthrown by a military take-

over, or by any coup d eta! led by any elite class of the society. In
such a case the new revolutionary government sometimes creates a
new Constitution.
Constitution, Constitutional Law and Politics 33

For example, Constitutions were created by such revolutionary

methods in the American States; in France after the French
Revolution; in Russia in 1917; in Pakistan in 1962 after military
take-over in 1958.

Constitution by Gradual Evolution

A Constitution may come into existence as the result of slowly
working evolutionary changes. Beginning with an autocratic
government, power may pass in fact, though not in law, to persons
who represent the peopleBy long acquiescence and by the growth
of political practices the authority of the latter may finally be
recognized as legal. A Constitution grown in this a way is said to be
the child of evolution. Such a Constitution is largely unwritten and
it appears in a series of documents rather than in a single document.
The constitution of Britain is the best and, better to say, the only
example of this type.

/T he Background of the Establishment of

Bangladesh Constitution
After independence Bangladesh received its new Constitution
adopted by a Constituent Assembly. The Constitution was given
effective on 1 6th December, 1972.
Before the new Constitution was
made effective there was one interim Cnstitution in Bangladesh. It
was initially the Proclamation of Independence (10th April, 1971)
and later, the Proclamation of Independence along with the
Provisional Constitution of Bangladesh Order, 1972.

The Proclamation of Independence

Following the Pakistan army crack-down on March 25, 1971
the declaration of independence of Bangladesh was broadcasted
from the Shadhin Bcingla Betar Kendra (Free Bengal Radio
Station) in Chittagong. The declaration was an informal
announcement since till then it was East Pakistan and no
revolutionary government was formed to turn the so-called East
Pakistan into Bangladesh and to give the declaration a legal basis.
So from the viewpoint of international law, to legalise the
declaration as well as to legalise the independence war of
Bangladesh it was essential to form a revolutionary government.
Without such a government and a formal declaration there were

3
34 Making the Constitution of Bangladesh

some vital issues in question- how could the international

community have knowledge about the forthcoming separate entity
of Bangladesh? 1-low could Bangladesh which was yet to achieve
independence through fighting could seek assistance from India and
other international community? and how would the freedom war be
administered? With this end in view the Awami League leaders i.e.
the elected representatives (MNAs and MPAs) of the erstwhile
East Pakistan who could flee to India assembled in Calcutta. With
their prompt initiative a fonnal Proclamation of Independence was
drarld and adopted on 10th April, 1971 with retrospective effect
from March 26, 1971. Under this Proclamation the representatives
constituted themselves into a Constituent Assembly for Bangladesh
and declared Bangladesh i.e. the erstwhile East Pakistan as a
Sovereign Peoples' Republic. They thereby confirmed the
declaration of independence already made on March 26, 1971. And
now it remained no longer a mere declaration; it became a formally
approved document which acted as an interim Constitution. Under
this very Proclamation the Bangladesh Government-in-exile was
legalised though it was formed earlier with the leading initiative of
Tajuddin Ahmed. The Government-in-exile i.e. the revolutionary
government of Bangladesh formally took their oath on 1 7th April,
1971 at Meherpur in Kustia District t . The Proclamation was a
Constitution because it outlined the nature of the state, structure of
the government etc. The Proclamation declared Bangladesh as a
sovereign Pople's Rpublic.t 'It provided for presidential system of
government and declared that the President-
'4 shall be the Supreme Commander of all the Armed forces of
the Republic.
? shall have power to appoint a Prime Minister and such other
Ministers as he considers necessary.
4^ shall have the power to levy taxes and expend moneys.

For details, See. Ahmed, Moudud, Bang/odes/i The Constituitonal Quest for
Autonom y. (Dhaka: UPL, 1979), PP.264-271
Chowdhury, A.K. The Independence of East Bengal. (Dhaka : Jatiya Granthakendra,
1984). PP.270-274.
Ahrned, Moudud.Bang/adesh Era of Sheikh A l ui/bar Rahman, (Dhaka: UPL, 1984),
PP•4.-7
Talukdar. Man iruzzainan. The Bangladesh Revolution and its A ftermath. (Dhaka;
UPL. 1988), PP. 109-112
Hasan, Moidul. Mainstream 1971, (in Bengali) (Dhaka: UPL. 1995).1 1 11 . 16-18
Constitution, Constitutional Law and Politics 35

I V111
shall have the power to summon and adjourn the Constituent
/Assernbly; &
vf shall exercise all legislative and executive powers of the
Republic including the power to grant pardon.

Though the President was empowered with all uncontrolled

powers like a dictator, it was nothing unusual or undemocratic since
it was a war time- a special circumstances which is met by special
laws to enable the government to handle the affairs of the state
effectively.

The Proclamation of Independence read with the Provisional

/ Constitution of Bangladesh Order, 1972
On 16th December, 1971 Bangladesh achieved its full formal
independence. The Government-in-exile came to Bangladesh on
December 22, 1971 and took the administration of the new born
state. The State administration was being run according to the
Proclamation of 1ndéeiidence. On January 8, 1972 Sheikh Mujib
who was till then the President of Bangladesh under the
Proclamation was released from Pakistani jail and returned to
Bangladesh on 10th January, 1972. The same day, to keep in line
with his earlier commitment, Mujib expressed his intention not to
act as the President but chose to be the Prime Minister of
Bangladesh in line with a Westminster type parliamentary system.
Accordingly on 11th January, 1972 as the President of Bangladesh
Sheikh Mujib issued the Provisional Constitution of Bangladesh
Order whereby the entire character of the government was changed.
The Presidential form was substituted by a form aiming at a
Westminster type parliamentary system. The reason stated for
changing the system was that it was the "manifest aspiration of the
people of Bangladesh to establish a parliamentary democracy" and
so in order to achieve this objective the new system was introduced.
R is to be mentioned here specifically for the purpose of research
that someone might comment that the Provisional Constitution of
Bangladesh Order, 1972 acted as the second interim Constitution of
Bangladesh. But this view seems to be wrong. Because the
Proclamation of Independence along with it the Provisional
Constitution of Bangladesh Order, 1972 acted as the single interim
Constitution of Bangladesh till 16th December, 1972. The
36 Making the Constitution of Bangladesh

Provisional Constitution of Bangladesh Order, 1972 did not

actually supersede the Proclamation of Independence, 1971: nor
was the Proclamation formally abolished; nor was the Provisional
Constitution Order any formal amendment to the Proclamation. The
Provisional Constitution Order changed only the character of the
government i.e. from presidential to parliamentary form. A minute
perusal of both the documents and the functioning of the then
government would necessarily give the idea that both the
Proclamation and the Provisional Constitution Order were acting as
the Constitution of the country. Because though the Provisional
Constitution Order changed the character of the government, it did
not tell anything about the legislative power; nor did it give any
power to the Constituent Assembly to control the cabinet; nor did it
tell anything about the exercise of executive power of the state. All
executive and legislative powers were being exercised by the
President under the Proclamation in an uncontrolled way. The main
provisions of the Order, however, were as follows:
i) There shall be a cabinet of Ministers, with the Prime Minister
at the head.
ii) The President shall in exercise of all his functions act in
accordance with the advice of the Prime Minister.
iii) There shall be a Constituent Assembly comprising of the
elected representatives of the people of Bangladesh who were
elected as MNAs and MPAs in the elections held in December
1970, January, 1971 and March, 1971 not otherwise
disqualified by or under any law.
iv) 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 shall be appointed by the President on the
advice the Prime Minister.

Under this system Justice Abu Sayeed Chowdhury became the

President of Bangladesh and Sheikh Mujib became the Prime
Minister.'

1 For details, see. chapter XXIV of this book and also Ahrned. Moudud. Bangladesh
Era of Sheikh A mujibar Rahman, (Dhaka : UPL, 984). 11.8
Constitution, Constitutional Law and Politics 37

Constitution Making Process

The Constituent Assembly of Bangladesh Order, 1972
The first step in making the Constitution of independent
Bangladeshwas the promulgation of the Constituent Assembly of
Bangladesh Order on March 22, 1972 as envisaged in the
Provisional Constitution of Bangladesh Order, 1972. Under this
Order the Constituent Assembiy was given only one function to
discharge and it was to make a Constitution for Bangladesh. The
Constituent Assembly comprised the elected representatives and
hence under parliamentary system, it should have been given the
power to control the cabinet as well as to make laws for
Bangladesh. But it was unfortunate that on the very outset the
constitutionalism got a setback in Bangladesh. It is pertinent to note
here that when on August 14, 1947 India and Pakistan achieved
their independence under the Indian Independence Act. 1947,
provisions for the creation of two Constituent Assemblies- one for
Pakistan and one for India, were made in the Act. The Act also
provided that until new Constitutions were framed, the Constituent
Assemblies of both the Dominions would act as central legislatures
for both the Dominions. Thus the Constituent Assembly of Pakistan
had dual functions-to frame a constitution for Pakistan and to act as
the legislature for Pakistan and as a 1egslature for Pakistan it would
make all national laws for Pakist; it had control over the cabinet;
the cabinet was collectively respoifsible to it; government could not
expend any money without the approval of the Assembly. Likewise
the Second Constituent Assembly in Pakistan had this dual function
which is a must for the development of constitutional government.
But in the constitutional history of Bangladesh the Constituent
Assembly was not given any legislative power;' nor had it any
power to control the cabinet; law making power was vested with
the President who was to do everything with the advice of the
Prime Minister. Thus the Constituent Assembly virtually remained
subordinate to the President (in other words, to the Prime Minister),
and the government remained unanswerable to any body or forum.2
It may, therefore, be said that though Sheikh Mujib by changing the

Why was not the Constituent Assembly given law making power?
See. pp . 143-144
See also Ahmed, Moudud. Bangladesh : Era of Sheikh Mujibur Rahman, (Dhaka:
UPL. 1984). PP. 8-9
38 Making the Constitution of Bangladesh

form of government instantly showed his and his party's long-

cherished intention to establish a responsible government with a
Westminster type parliamentary system, he showed only the
shadow, the substance keeping in the other side of the wall. It was
not more than a mere expression of his sentiment.
Now we should proceed to see the functioning of the
Constituent Assembly on its way to the Constitution making for
Bangladesh.

'1'Iembers of the Assembly

The Constituent Assembly comprised the elected
representatives of the people of Bangladesh who were elected as
MNAs and MPAs in the elections held in December, 1970, January,
1971 and March, The
were 469 (169_MNAs& 300 MPAs). Among them d inih
meantime, 2 became PakistaFitiis, 5 were arrested under the
Collaborators Order, 46 were declared disqjjd under the
Constituent Assembly (Disqualification of MernbèrFrip) Order and
I went to a toreign service. The remaining 403 membersmnne
the Constituent Assembly to the last of its life. Out of t iem 00
members belonged to the Awarni L ea g u e, one belonged to National
Awami Party (NAP) (Suranjit Sen Gupta) and two were
independents.))

*7 ,/. First Session of the Assembly

li-The Constituent Assembly had its first session on 10th April,
1972. In this session a Constitution Drafting Committee of 34
members was formed under the chairmanship of Dr. Kamal
Hossain, the then Law Minister. All but one member (Suranjit Sen
Gupta) of this Committee were from Awami League. The
Committee was asked to submit its report to the Constituent
Assembly with a Bill of the Draft Constitution. The committee had
its first meeting on 17th April, 1972. In this meeting a resolution
was adopted which invited proposals and suggestions from all
sections of the people. In response to this invitation, 98 memoranda
were received.' The Drafting Committee had 74 meetings to draft

The report of the Drafting Committee does not mention if any of those memoranda
was accepted; it says that the mernorandas were circulated to members of the
committee and the suggestions contained in them were duly considered by t'e
Constitution, Constitutional Law and Politics 39

the constitution and on 10th June it approved the draft Constitution.

Then with a view to observing the practical working of the
parliamentary constitutional system Dr. Kamal Hossain went to
Britain and India. Lastly on 11th October the last meeting of the
Committee was held and the full draft Constitution was finally
approved.

a-Second Session of the Constituent Assembly

(ffhe Second session of the Assembly commenced on 12th
October, 1972. On this day Dr. Kamal Hossain introduced the draft
Constitution as a Bill. After seven days general discussion over the
Bill commenced on October 19 and continued till November 3.
During this long discussion 163 amendments were proposed.
Among these 84 amendments were adopted 83 of which were
moved by Awami League members and one was by Suranjit Sen

It
Gupta. But most of the amendments were relating to the linguistic
errors of the Bill. The Third reading on the Bill was held on
Npverrl,b er very day the Assen adopted the.
Constitution for é1Tect from the 16th
DDember, 1972 the first anniversary of the'victory day'. )i7

Salint Features of the Constitution of Bangladesh, 1972

he original constitution was made in 1972 for Bangladesh, it
embodied some fundamental and basic features or characteristics.
These features are as follows:

^ ' Nvritten Constitution: The Constitution of the Peoples'

Republic of Bangladesh is a written document))lt was formally
adopted by a Constituent Assembly on a speThc day (4th Nov.
1972). It contains 153 articles, I preamble and 4 Schedules.

members in course of their deliberations. (See page 1 of the Report). I asked Dr.
Kamal Hossain if any of them were accepted. He told it was impossible for him to
recollect after 26 years if any of them were accepted. He advised me to examine those
98 memorandas. I left no stone unturned to find those memorandas but nobody could
give me the trace of those. Though a trace was found in the Record Book of the
Constituent Assembly, those memorandas could not be found, for parliament building
was transferred to the present one and a huge number of documents of the erstwhile
East Pakistan Assembly and of the Constituent Assembly of Bangladesh particularly
those documents which were not tabled in the Assembly or House have been all
heaped up in a store room of parliament and these are yet to be ordered and arranged.
40 Making the Constitution of Bangladesh

(1Rigid Constitution: The Constitution of Bangladesh is a

rigid one since no provision of it can be amended by ordinary law-
making procedure; an amendment can be passed only by votes of
not less than two-thirds of the total number of members of
parliament. ))

Preaml: (fhe Constitution of Bangladesh starts with a

preamble which is described as the guiding star of the Constitution21
This very preamble contains the legal as well as the moral basis of
the Constitution; it also identifies the objectives and aims of the
state. 1

4/ Supremacy of the Constitution £onstitutional supremacy

has been ensured in the Constitution of Bangladesh. Because article
7(2) provides that "This Constitution is -----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.

Unitary Governmental System: Article I of the

Constitution provides that Bangladesh is a unitary peoples' republic
as opposed to federal republic. Governmental system is a unitary
one since all power under the constitution has been centralised to a
unitary government; no division of power has been provided for in
the Constitution unlike in federal constitutions.

6.Unicameral Legislature: Article 65 of the Constitution

provides for a unicameral legislature for Bangladesh. It is only one
House to be known as the House of the Nation) Like Indian
legislature it is not composed of upper House and lower House.
Laws made by the parliament are equally applicable to the whole
territory of Bangladesh.

7 4 un damental Principles of State Policy: Article 8 of the

Constitution provides for four major fundamental principles of state
policy. They are (i) Nationalism, (ii) Democracy, (iii) Socialism;

1
See, further chapter 111
2 See, further chapter IV
Constitution, Constitutional Law and Politics 41

and (iv) SecularismAl1 other principles derived from these four

shall also constitute the fundamental principles of state policy.'

8j1?u n damental Rights: Part-Ill of the Constitution provides

for 18 fundamental rights The enjoyment and enforcement of these
rights have been guaranteed in the Constitution. The Supreme Court
has been invested with the task to protect these rights. No authority
can make any law which is inconsistent with the provisions of
fundamental rights and any law so made shall, to the extent of such
inconsistency, be void.2

9 4Parliamentary form of Government: The Constitution of

Bangladesh provides for a Westminster type of parliamentary
systemThis form of government, in other words, cabinet form of
government means that the government is run by a cabinet of
Ministers headed by the Prime Minister and the cabinet as a whole
has to be responsible to the parliament and can remain in power so
long it enjoys the confidence of the majority members of the
parliament. President becomes a titular head : the real executive
power is exercised by the cabinet. The 1972's Constitution of
Bangladesh provided, more or less, all the trappings of
parliamentary Form of government.

Wrindependence of Judiciary: The Constitution of 1972

ensure dihe independence ofjudiciary)

'Firstly, provision was made that the Chief Justice would be

appointed by the President and other justices of the Supreme Court
would be appointed after consultation with the Chief Justice (Art.
95) Appointment of subordinate judges and magistrates was also to
be xercised with consultation of the Supreme Court.

Secondly, a judge could not be removed from his office except

by an order of the President passed pursuant to a resolution of
parliament supported by a majority of not less than two-thirds of the
total number of members of parliamentAgain, the security of
tenure of the subordinate judges was veste in the Supreme Court.

See, further Chapter V

2 See. further Chapter VI
42 Making the Constitution of Bangladesh

Thirdly, it was provided that the remuneration,privileges and

other terms and conditions of service of judges could not be varied
to their disadvantages and the salaries of the judges were charged
upon the Consolidated Fund of the Republic. Again, the control
(including the power of posting, promotion and rant of leave) and
discipline of persons employed in the judicial service and
magistrates exercising judicial functions was vested in the Supreme
Court.'

Thus the entire judiciary except some aspects of magistrate's

courts was made independent.2

.Ombudsman: Provisions for the establishment of an

ombudsman were inserted in Article 77JTo provide machinery to
overview the activities of civil bureaucracy, to eradicate corruption
in the administration and to ensure the responsibility of the
government in a more specific way the role of an ombudsman like a
citizen's defender or watch-dog has been successful in some
countries. Though the office has not yet been implemented in
Bangladesh, the incorporation in the Constitution of such an office
reflected the desire of the Awami League to strengthen the
functioning of democracy in the country.3

12. Responsible, Government was not ensured: Though the

1972's Constitution of Bangladesh provided for the Westminster
type of parliamentary form of government it could not ensure, due
to some of its repressive provisions, the conditions of responsible
government. A cabinet form of government is directly responsible
to the parliament in the sense that the cabinet as a whole has to be
accountable to the parliament and an individual minister has to be
responsible in respect of his departmental administration. In the
Constitution of Bangladesh, there is no provision for ensuring the
individual responsibility of ministers. Though Article 55(3)
provides that 'the cabinet shall be collectively responsible to the

I Of course, the independence of lower judiciary as far as it relates to the Magistrates

Courts exercising judicial power was ensured in proper Form. See, details. PP. 36!-
363
2 See. further Chapter XIX
Sec. further Chapter Xviii
Constitution, Constitutional Law and Politics 43

parliament', this responsibility cannot be ensured in practice due to

the barricade created by Article 70 of the Constitution.'

In fine, it can be said that except some weaknesses and draw-

backs like the provisions of Article 70, ordinance making power of
the President, magistrate's courts, administrative tribunal etc. the
Constitution of 1972, to a large extent, reflected the aspirations of
the people. It was undoubtedly an improved Constitution to
compare with all contemporary Constitutions of the sub-continent
since there was no provision in the Constitution for preventive
detention, neither was there any provision for emergency and
suspension of fundamental rights- two brutal weapons to crush the
opposition and perpetuate the rule and thereby creating a stumbling
block to the way of developing constitutionalism. The Constitution,
therefore, reflected the avowed purpose of its makers to establish
constitutionalism in Bangladesh. But the fruits of the healthy
Constitution could not be enjoyed by the people of Bangladesh for
long. Bangladesh was probably not the right place to have the
luxury of such a good Constitution. Only after nine months of its
life amendments one after another began to inject in it all the
undemocratic provisions which will be discussed in the following
respective chapters.

Some Flaws in Constitution Making

1. The Question of Independence of Lower ,Judiciary
Particularly of the Magistrate's Courts.
It is often argued that the original Constitution of Bangladesh
ensured full independence of the judiciary. But this is true only in
respect of the Supreme Court i.e. the Higher Judiciary but not in
respect of the lower judiciary particularly of the Magistrate's
Courts. The whole system of magistrates courts along with other
lower judiciary have been kept in a dependency syndrome under the
control of the executive. However, after 36 years on 1st November,
2007 the sitting caretaker government finally separated the lower

1 See, further Chapters VIII & IX

44 Making the Constitution of Bangladesh

judiciary from the clutches of the executive. (see, details, PP. 344-
350).

2. Administrative Tribunal
Following the system of French specialised court of Tribunaux
A dininisiratif most of the developing countries have set up separate
administrative court or tribunal to settle administrative disputes and
service matters. The main argument behind establishing such a
separate court is that in developing countries it is not possible to
achieve objectives, if administrative disputes and service matters
are subjected to judicial review. For this reason in the then Pakistan
establishment of separated administrative courts were demanded
and the Law Reform Commission 1967-70 was asked to give report
on the matter. Bctbre going to discuss the substance of the report
first I would like to discuss the provisions inserted by the
constitution-makers in relation to administrative tribunal. The
constitutional provisions as to administrative tribunals are
following:
i) Parliament may by law establish one or more administrative
tribunals to exercise jurisdiction in respect of service matter and
the acquisition, administration, management and disposal of any
property vested in or managed by the government [Art. 117(1)].
ii) Where any administrative tribunal is established no court shall
entertain any proceeding or make order in respect of any matter
falling within the jurisdiction of such tribunals [Art. 117(2)].
iii) Parliament may, by law, provide for appeals from, or review
otl decisions of administrative tribunals (ibid).
iv) No writ will lies in the High Court Division under Article 102
against any administrative tribunal [Art. 102(5)].

Draw-backs:
1. The Constitutional plan of administrative tribunal has been
designated as a deviation to a fundamental principle of common
law jurisprudence. According to common law jurisprudence as
opposed to civil law jurisprudence all courts and tribunals in a
country are subordinate to one Supreme Court or High Court. But
as the provision goes, administrative tribunals in Bangladesh are
Constitution, Constitutional Law and Politics 45

not subordinate to the High Court Division. According to Articles

117(2) and 102(5) all administrative tribunals are outside the ambit
of judicial review by the Supreme Court. Though it may be
contended that under the doctrine of convergence judicial
specialisation is taking place in a rapid way in many common law
countries, it is very much difficult to find out even a single instance
except in some dictatorial constitutions where total specialisation
has taken place negating the minimum jurisdiction of the Highest
Court of the land. Neither in Pakistan Constitution (Art. 212) nor in
Indian Constitution (Art, 323A ) are administrative tribunals
exempted from the power of judicial review by the Supreme Court.
In both the Constitutions the right to special leave to appeal by the
Supreme Court against any decision of the administrative tribunal is
granted. But in Bangladesh Constitution the whole plan has been
designed so that a parallel Supreme Court may be established for
services and property matters of the Republic.

2. The whole Constitutional plan for administrative tribunal as

has been designed by the Constitution-makers seems to have gone
against the concept of rule of law. Because since the Constitution
has envisaged completely a separate hierarchy of administrative
tribunals, it was an imperative duty on the Constitution-makers to
outline in the Constitution the conditions of services and of
appointment of persons who are to chair these tribunals and also the
conditions of ensuring their independence and impartiality so that
the government by simple majority cannot make undemocratic law
relating to administrative tribunals or administrative appellate
tribunal to use the whole machinery in their favour frustrating the
pious purpose behind them.
It is worthy to note here that in Pakistan, as mentioned earlier.
the Law Reform Commission, 1967 was asked to give report on the
establishment of administrative tribunals. The Commission gave its
interim report in 1967 and final report in 1970. In it the
Commission says-

Doctrine of Convergence: It is a developing doctrine uiwlcr comparative law. It

means that the two judicial system i.e. ckil law svstcni and c'nimon law s stem arc
coming nearer to each other. Common law is taking niaiiv 'ieincnts of' civii law
system. Similarly ckil law system is taking man y elements- ii--h not l'undui ental
ones, of common law sstcni.
46 Making the Constitution of Bangladesh

(I) ...............Those who advocate curtailment of the power of the

judiciary to review administrative actions appear to be oblivious
of the fact that in a welfare state the rule of law is the basic
requirement, so as to serve as a check on arbitrary executive
action and to achieve a balance between collective requirements
and individual rights ....... In a true welfare democratic state,
review of administrative actions of the executive by sonic
independent organ of the state is a must.........

(ii) 'The system of 'Council ci' Etat' and 'Tribunaux

A a'ministratif owes its existence to peculiar conditions prevailing
in France. This system is totally different from the common law
system with which we are familiar."

(iii) "The success of an institution like the 'Council d' Etat' in

France primarily depends on the availability of really intelligent,
experienced and independent civil servants to serve as its
member which we lack in our system."

Lastly the Commission recommended that the Administrative

Tribunal should not be kept outside the ambit of judicial review and
it should be presided over by retired judge of the Supreme Court or
High Court who should have the same security of office as a
serving judge. However, our Constitution-makers did not take a
look at this report.2

It is, however, fortunate that Justice Sahabtddin Ahmed while

acting as interim President made an amendment to the
Administrative Tribunal Act, 1980 by an Ordinance and inserted
there a provision (sec. 6A) that appeal against the decision of the
Administrative Appellate Tribunal shall lie to the Appellate
Division of the Supreme Court. But this is an amended provision of
an ordinary law which can be repealed any time by the government.
So Constitutional changes should be made to the following effect:

The Report of the law Reform Commission 1967-70 Chapter XXVII

2 1 asked both Dr. Kamal Hossain and Barrister Amir-tJl Islam whether they considered
the report while drafting the constitution. They told that they had no knowledge out.
Constitution, Constitutional Law and Politics

i) It should be provided in the Constitution that appeal from the

Administrative Tribunal shall lie to the HCD of the Supreme
Court.
ii) The Administrative Appellate Tribunal should be abolished.
iii) It would be a better step to establish a Bench in the High
Court Division to be known as the Administrative Bench
abolishing the Administrative Appellate Tribunal.

3. Article 70: Anti-Hopping Laws

Considering the past experiences of political defections in the
erstwhile East Pakistan provisions for prevention of floor-crossing
as inserted in Article 70 has been salutary howsoever undemocratic
hey may be. For the purpose of establishing stable parliamentary
Jemocracy in Bangladesh a provision like this is unavoidable.
Ihese provisions would certainly strengthen the fabric of
arliamentary democracy in Bangladesh by curbing unprincipled
nd unethical political defections and side swapping. However, in
roviding for prevention of floor-crossing the Constitution-makers
eem to have done more than what was necessary. Anti-hopping
iws are essential only for the stability of the government and that
an better be ensured if these laws are imposed when the cabinet
ices a no-confidence or confidence motion. But as the provision
oes in Article 70, no member of the rulin g party can exercise his
[emocratic right to dissent even when the government passes an
indemocratic law. Article 70 undermines the whole spirit of
esponsible government and leads to elected dictatorship in
3ang!adesh. It is important to note here that the report of the
Constitution Drafting Committee shows that there were as many as
six notes of dissent and four of them had opinion against and as to
amendment of the provisions of Article 70. But none of dissenters
suggested for a compromising process whereby both the floor-
crossing can be prevented and the spirit of responsible
parliamentary government can be sustained. Also an interview \vTh
Barrister Amir-Ul Islam gives the idea that the Constitution-makers
had neither knowledge of, nor could they contemplate the
compromising process.'

For details of anti-hopping laws and compromising process. see, Chapter VIII
.48 Making the Constitution of Bangladesh

4. The Issue of Bangalee Nationalism

The issue of 'Bangalee nationalism' in the sense of citizenship, in
other words, the concept that 'citizens of Bangladesh shall be known as
Banglees as inserted in Article 6 of the Constitution is a matter absolutely
out of constitutional consideration. It is difficult to find a democratic
constitution except the Bangladesh one where such specification as to
nationalism in the sense of citizenship is incorporated. Both from the
viewpoint of national law and international law the national identity as
far as it relates to the matter of citizenship of the people of a particular
state is determined by the adjective term of the name of that very state
whatever might be the other facts or history as to their nationalism. For
instance, the national identity of the people of Pakistan is Pakistani
though there are many other communal and religious nationalisms like
Punjabi, Muslim, Baluchi etc. Likewise, the national identity of the
people of India is Indian though there are many other communal
nationalisms like Sheikhs, Tamil, Hindus, Muslim, Bangalee, Tribal
people etc. Ii any communal or cultural or linguistic heritage-based
nationalism is imposed over all the people of a state as their national
identity from the viewpoint of citizenship, there might occur unnecessary
chaos between the majority communal group and minority communal
group or groups. And such has been the case of Bangladesh. The
Constitution-makers inserted a commLlnal and discriminatory nationalism
'Bangalee' in the Constitution which has been an imposed nationalism
particularly over the tribal people of Bangladesh against their will. Till
now since independence this issue of'Bangalee' nationalism has been one
of fundamental points of difference and divergence between mainstream
political forces in the country and I am confident that this trend
concerning this issue will continue forever. If any historical trace or fact
is attached to the word 'Bangalee', it should be a matter of our cultural or
linguistic heritage under the domain of sociology. One of Mujib's close
associates told me that the Chittagong Hill Tract Problem was made more
aggravated when Muib imposed Bangalee nationalism' over the tribal
people who are in tic) sense Bangalee but necessarily Bangladeshi.

5. Women Members' Reserved Seats

Though the concept of reserved seats for women is not undemocratic,
the Constitution has not incorporated the provisions in line with
democratic spirit. The provisions come out as a 'vote bank or 'backdoor
democratic' system (See details in Chapter XVII).
Constitution, Constitutional Law and Politics 49

CHAPTER III

'PREAMBLE TO THE CONSTITUTION

The US Constitution adopted in 1787 for the first time
contained a preamble and thenceforth most of the new countries
with written constitution are adopting a preamble to their
constitutions.
' Vhat 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. 2 Likewise the preamble to a Constitution is
its philosophy because it contains those ideals and principles on the
basis of which the whole structure of the Constitution is erected.
But though in case of ordinary statutes much importance is not
always attached to the preamble, extreme importance is always
attached to a preamble in a constitutional statuteThe preamble to a
Cons, J tution serves the following three main purposes
It indicates the source of the Constitution i.e. the legal and
moral basis of the Constitution.
?i It expresses in a nutshell the ideas and aspirations of the
objectives of the Constitution.
It works as the guiding star for the interpretation of the
Constitution.

,Y'- Preamble and the Operative Part of the Constitution

(Sometimes it is argued that the preamble is not included in the
operative part of the Constitution. It is not an intçgral part of the
constitution in the folowing senses)
( Firstly, if it were dropped from the constitution, the operative
part of the Constitution would, in no way, be hamperedj

Per Stibba Rao Ci. in Golaknaih V . State of Punjab A IR 1967 SC 1643

2 Sikri. Cl in Kesavananda ITharati Case AIR (1973) 4 SCC 225
50 Preamble to the Constitution

ISecondly, it is not necessary that every statute or Constitution

Should begin with a preamble. The Government of India Act, 1935
though it was the second Constitution of the British India, had no
preamble.)
Thirdly, the preamble of a Constitution is neither regarded as
the source of any substantive governmental power nor does it by
itself import any limitations on the exercise of powers not
expreHy or impliedlv prohibited by the Constitution.'
norIt was opined by the Supreme Couit of USA that a preamble is
an operative part of the Constitution. It indicates only the
general purposes for which the people ordained and established the
Constitution. It has never been regarded as the source of any
substantive Power conferred on the government of the USA or any
of its departments. 2 Similarly, the Supreme Court in India has laid
down in some cases that the preamble is not an operative part of the
Constitution and hence it can never be a source of powerIt has
limited application and can be resorted to where there is any
ambiguity or where the object or meaning of any enactment is not
clear) Where the cnablino part i.e. the operative part of the
Constitution is explicit an unambiguous. the preamble cannot be
resorted to, to control, qualify or restrict. In other words, where the
language or provisions of the operative part are clear, full effect
should be given to the operative part, even though those provisions
appear to conradict the terms of the preamble.- Also in Powell V .
Kemplon Park Race Course Co. Lord Halsbury L.C. said-Two
propositions are quite clear one that a preamble may afford useful
light as to what the statute intends to reach ; and another, that if an
enactment is itself clear and unambi g uous, no preamble can qualify
or cut down the enactment.4

Recent Views on Preamble

Thus the earlier view was that the preamble was not any
operative part of the Constitution. But some recent judgments have
given a quite different view. In Kesavananda I3Jiariis case the

In l3enibarj's case AIR 1960 SC 845

Jacobson V. Massachusetts (1905)197 US I
fleruharis case AIR 1960 SC 845
(Iolaknath V. State ol Punjab. AIR 1967
Re Kerala Education Bill case AIR 1958 SC 956
1899 AC 143
Constitution, Constitutional Law and Politics 51

Indian Supreme Court held that the preamble is a part of the

Constitution. Though in an ordinary statute not much importance is
attached to the preamble, all importance has to be attached to the
preamble of a Constitution. Sikri C.J. said-it seems to me that the
preamble of our Constitution is of extreme importance and the
Constitution should be read and interpreted in the light of the grand
and noble vision expressed in the preamble. According to the
judgment of this case the view taken in Berubari case was,
therefore, wrong.

Whether Preamble can be Amended ?

This question was raised for the first time before the Indian
Supreme Court in Kesavanancla Bharaii case. It was argued that
since the preamble was a part of the Constitution it could be
amended like any other provisions of the Constitution. The court
held that since the preamble is a part of the Constitution it can be
amended subject to this condition that the 'basic features' in the
preamble cannot be amended. The court said,
"The edifice of our Constitution is based upon the basic
elements mentioned in the preamble. If any of these elements
are removed the structure will not survive and it will not be the
same Constitution or it will fail to maintain its identit y . The
preamble declares that the people of India resolved to constitute
their country into a Sovereign Democratic Republic ........An
amending power cannot be interpreted so as to confer power on
the parliament to take away any of these fundamental and basic
characteristics of Policy".'
It is pertinent to mention here that the Supreme Court of
I3ang!adesh also held in the 5th Amendment case that preamble is a
part oF the Constitution and it is a basic structure of our
Constitution. 2 It is also noteworthy that though the Supreme Court
held that the parliament cannot amend any basic structure of the
constitution like the preamble, this very preamble was altered by
the martial law administrator and was later validated by the
parliament.

AIR (1973) SCC 225

See. or details. Chapter XXI
52 Preamble to the Constitution

Significance of the Preamble

The preamble is a part of the Constitution but it is not
necessarily the part of the enacting or operative part of the
Constitution, and the court cannot enfor2e it directly. The preamble,
therefore, bears no legal sign ificance.I3ut it has other important
significance which is sometimes more than the legal importance.
First, it is the premble which identifies the legal source or base
of the Constitution Legal base of the Constitution means
wherefrom the validity and power of the Constitution is derived.
uQ'Second, it indicates the moral basis or the philosophy of the
Constitution. The logic which works behind obeying a Constitution
as the supreme law is its moral philosophy.
Third,the preamble works as a guiding star for the whole
natior9 Because it is pledged in the preamble that all governmental
works would be administered in conformity with preamble and
taking it as a pole star.
Fourth[he preamble has a great interpretative significance.
Where any operative part of the Constitution is ambiguous the
preamble can be resorted to clarify that part or wordings.,P

The Preamble or the Philosophy of the

/ Bangladesh Constitution
The preamble of the original Constitution of 1972 was amended
by the Martial Law Administrator and then validated by the 5th
Amendment of the Constitution. From this amended preamble we
get the following features of it:

/1. It identifies the legal basis of the Constitution.

"We, the people of Bangladesh ..............in our Constituent
Assembly, do hereby adopt, enact and give to ourselves this
Constitution."
These words mean 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, therefore, indicates that the legal
basis of our Constitution is the people-the ultimate source of all
power.
Constitution, Constitutional Law and Politics 53

2. It identifies the moral basis 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 Ban, ' ladesh, it is also the duty of this very people to obey it.
Again, as the suprme 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 he collapsed. It is, therefore, the moral duty of the people to
obey this Constitution. This moral basis of the Constitution has a clear
recognition in the preamble-
.. .......... it is our sacred ditty to safeguard, protect and defend this
Constitution and to maintain its supremacy as the embodiment of the
will of the people of Bangladesh...........
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. Because India achieved its
independence by the operation of that Act. 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
state .....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
54 Preamble to the Constitution

Assembly were MNAs and MPAs of the erstwhile 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, the y were
elected as MNAs and MPAs for the autonomy of the erstwhile Fast
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 sLipport of the people and it
undoubtedly would have been the fact had any fresh election been held
after independence.

4. It identifies the goal of the State.

The Preamble states:
it shall he 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 freedom, equality and
justice. political, economic and social, will he secured fur all citizens.

ow far have the Objectives enshrined in the Preamble

been maintained in Bangladesh
To see how far the objectives enshrined in the preamble have been
maintained and ensured we have to examine the conditions of the
following concepts which are components of an exploitation-free society-
the ultimate goal of the state.

/1uIe of Law:
The provisions of the original Constitution of 1972 were more or less
conducive enough to ensure rule of law in Bangladesh. But only after
nine months of its adoptio entive_detention, emerencetc. black
provisions were inrted in the Constitution thThugh the Second
Amendment arresting all the possible way to ensuring rule of law. Then
in 1975 by the 4mendinLjnulti-party democratic system was buried
and one party dictatorial presidential system was introduced
Constitution, Constitutional Law and Politics 55

undeririining, better to say, uprooting the spirit of constitutional

supremacy, judicial independence, rule of law and democracy.
In 1991 the 12th Amendment of the Constitution was passed
reverting the governmental s y stem from presidential to parliamentary and
the first 12 years of the second parliamentary democracy has been
completed. But rule of law still remains a far cry. Because all the black
provisions of the Constitution like emergency, preventive detention.
ordinance-making power of the president, involvement of the executive
in the judiciary, Article 70, CAG's dependence upon the executive etc.. as
the y stand now, are insLirmountable stumbling block against the ensuring
rule of law. I

-Fundamental Rights:
The Constitution provides for 18 fundamental rights and also their
better protection has been ensured in the Constitution. But due to poverty
and the absence of any legal aid most of the poor people cannot enjoy
their rights and also pjenjve detention, emergency provisions etc. act
as a threat towards the enjoyment of fundamental rights.

Political, Economic and Social Equality:

Not only in the preamble but in the chapter of 'Fundamental
Principles of State Polic y ' a large number of social and economic rights
have got their Constitutional recognition. But without a reasonable
economic equality among people no social or political equality can be
ensured. 32 years have passed since Bangladesh achieved independence
but economic inequality rather than equality is reigning the majority life
of the people. No government took stern measures to control the high
growth rate of population and the rate of literate people is going down to
compare with the growth rate. But there will be no political equality
unless and until the people are educated and politically conscious.

For Rule of Law. see, Chapter XX

For Emergenc y . sec. Chapter XV
For Preventive Detention. sec. Chapter XVI
For Ordinance Making Power, see. Chapter XIV
For Article 70. sec. Chapter VIII
For more understanding of this chapter, see, also Chapter XXIV
56 Preamble to the Constitution

,Kuprernacy of the Constitution:

The 4th para of the preamble states-
.. ........ 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 ...........
But facts substantiate that our political leaders did not perform this
sacred duty. On 15th August, 1975 Sheikh Mujibur Rahrnan was
assassinated and Khandaker Mustaque Ahmed came to power declaring
Martial Law. The Constitution which is the supreme law of the nation
was kept in subordination of the martial law proclamation. And for the
second time martial law was declared in 1982- This time the Constitution
was suspended. Nowhere in the Constitution is the term "martial law"
available; nor has anybody been given any power to sLispend the
Constitution. But even then martial law was imposed twice
unconstitutionally undermining the supremacy and philosophy of the
Constitution as enshrined in the preamble, and for this the then leaders in
power are mostly responsible for they come to power taking their solemn
oath that they will maintain the supremacy of the Constitution. But when
they began, violating their affirmation. to abuse their Constitutional
power, the political instability follows and it ultimately paves the wa y for
military intervention. In this regard it is pertinent to mention the
udgment of Fazle M unirn J. in Jilima Kliawn V . Bangladesh.,
"What it appears From the Proclamation of August 20, 1975 is that, with
the declaration of Martial Law .... the Constitution of Bangladesh .. (has
been made) subordinate to the Proclamation and any regulation or order as
may he made by the president in persuanec thereof .... Under the
Proclamation ... the Constitution has lost its character as the supreme law of
the country. There is no doubt, an express declaration in Article 7(2) of the
Constitution to the following eftect." This Constitution is, as the solemn
expression of the will of the people, the supreme law oithe Republic, and if
an y other law is inconsistent with this Constitution that other law to the
extent of 'such inconsistency be void." Ironically enough. this Article, though
it still exists must be taken to have lost some of its importance and efficacy.
In view of .... the Proclamation the supremacy of- the constitution .... is no
lager unqualified."

30 Dt.R (SC) 207

Constitution onstitutional Law and Politics 57

4/
il CONSTITUTIONAL SUTREMACY
(Two types of supremacy are found in the constitutional systems
in different countries. One is parliamentary supremacy and the other
is constitutional supremacy or judicial suprernacy.J

Parliamentary Supremacy
,
'&Thc term Parliamentary supremacy means that parliament is
supreme over the Constitutio It is also called legislative
supremacy because the legislature is not a body created by the
constitution neither the power of the legislature is limited by the
Constitution ; the legislature exercises an unlimited and supreme
power in law-making- Such legislative supremacy is possible only
where the Constitution is unwritten and flexible. The British
Constitutional system has this legislative supremacy. Three intrinsic
features of parliamentary supremacy are following
i) There is no law which parliament cannot change or modify.
ii) There is no distinction between constitutional law and
ordinary law.
iii) There is no body which can declare the law passed by
parliament illegal or unconstitutional.

Constitutional Supremacy
Fhc term 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. r

The object of making the Constitution written and rigid is to

limit the powers and functions of the government and the
legislature. In most eases of written Constitutions a declaration is
made in the Constitution that the Constitution shall be the supreme
and fundamental law of the land and no other law can be
inconsistent with it. The American Constitution makers were the
58 Constitutional and Parliamentary Supremacy

first to designate their Constitution as the "Supreme Law of the

Land'' and this designation has resulted the doctrine of
Constitutional supremacy. The bLinding fathers of American
Constitution had the painful experience that even a representative
body might he tyrannical and there should be a law superior to the
legislature itself and that it was the restraints of this permanent
written law that could only save the people from the fear of
absolutism and autocracy.

(1 This constitutional supremac y is also called judicial supremacy

in the sense that the judiciary i.e. the highest court of the land is
supreme over the legislature. Because the judiciary is invested with
the power to examine the validity and constitutionality of any
legislation made by the parliament and can declare a law void on
the ground of inconsistency with the Constitution.

As to the doctrine of constitutional supremacy Professor Wade

says that 'in a constitutional system which accepts judicial
supremacy legislation may be held invalid on variety of grounds
for example, because it conflicts with the separation of powers
where this is a feature of the Constitution or infringe human rights
guaranteed by the Constitution or has notbeen passed in accordance
with the procedure laid down in the Constitution. Professor Hood
Philips says that 'to say that a Constitution is supreme is to describe
its relation to the legislature's power to alter the Constitution is
either limited or non-existent.' 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 the source of their authority. It prescribes the manner in
which and within which their functions are to be exercised. The
three organs of the state cannot do anything beyond the
constitutional limitations. If any organ does anything in violation of
the constitutional limitations then it is the court which can declare
the action null and void and this paramount power of the court is
given by the Constitution itself. Thus the Constitution has a sanctity

The Constitution I U SA. Art. Vi

Constitution, Constitutional Law and Politics

over everything in the realm. It is why this position is called

constitutional supremacy.

tt haracteristics of Constitutional Supremacy

The doctrine of constitutional supremacy as contradistinguished
form the parliamentary supremacy has following characteristics:

i) The Constitution is written.

ii) The Constitution must he rigid.
iii) There must be, in the Constitution. either express or
implied declaration that this Constitution shall be the
supreme law and any other law inconsistent with this
Constitution shall he void.
iv) The parliament is created by the Constitution itself and it
exercises its legislative power being within the bounds of
the constitutional limitations.
v) There is distinction between constitutional law and
ordinary law.
vi) There is an independent body (court) created by the
constitution to examine the constitutionality ct legislation
made by the parliament and any action done by the
executjve.

How can the Supremacy of the Constitution

be Maintained
Constitutional supremacy is never a matter of conventional
sanction as is the case of parliamentary supremacy in Britain.
Constitutional supremacy depends oil fulfillment of the
following conditions:
/
The Constitution must he written:
If the Constitution is not written, the distinction between the
fundamental law and ordinary law will be impossible; no restriction
can be imposed on the parliaments legislative power and as a result
constitutional supremacy will not be possible.
Constitutional and Parliamentary Supremacy

16/11ic Constitution must be rigid:

lithe Constitution is flexible then it can easily be amended by
ordinary law making procedure and there will he no distinction
between constitutional law and ordinary law, and it would then
Ultimately be parliamentary supremacy.

J/An Independent Judiciary:

An independent judiciary must be created by the Constitution
itself and it must be given the status of a guardian of the
Constitution and fundamental rights enumerated in the
Constitution. Otherwse the test of constitutionality of any law
made by the parhiamcnt and any action done by the executive will
he impossible leading to the total impossibility of constitutional
supremacy.

How is Constitutional Supremacy ensured

in Bangladesh Constitution
(1 The following points will help clarifying how the constitutional
supremacy is ensured in the constitution of Bangladesh.

I. The Constitution of Bangladesh is a written one. It

specifically prescribes the manner how the power and functions of
the organs of the government will be exercised.

2. It is a rigid Constitution. Because it can be amended only by

two-thirds majority (Art. 142). Again, to amend some provisions
like the preamble, the form of government (Articles 48 & 56) and
Fundamental Principles of State Policy (Art.8) a more stringent
method has been provided for. In these cases even after the bill has
been passed by two-thirds majority, a referendum is essentfhis
rigidity, therefore, imposes restriction on the power of the
parliament on the one hand and ensures distinction between
ordinary law and fundamental law on the other hand.

s
VfIt is the Con titution and not the parliament which is supreme
under the Constitution of Bangl. This is because, firstly, it is
Constitution, Constitutional Law and Politics 61

stated in the preamble 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.'

f Secondly, Article 7 states "All powers in the Republic belong to

the people, and their exercise on behalf of the people shall be
effected only under, and by the authority of,this Constitution. This
constitution is, as the solemn expression of the will of the people,
the supreme law of the Republic, and if any other, à' is
inconsistent with this Constitution that other law shall, to thextent
of the inconsistency, be void.','/

Fhirdly, Article 26 states that "All existing laws inconsistent

with the provisions of this part (i.e. fundamental rights) shall, to the
extent of such inconsistency, become void on the commencement
of this Constitution)The state shall not make any law inconsistent
with the provisions of this part4nd any law so made shall to the
extent of such inconsistency be void.

FourthlyjArticle 65 states that the legislative powers of the

Republic shall, subject to the provisions of this Constitution, be
vested to the parliament. /
Thus it is clear that the Constitution declares itself to be
supreme over the parliament. I

4. rThe declaration of Constitutional supremacy in the

Constitution implicitly presupposes the existence of an independent
authority to examine the constitutionality of actions taken by the
legislative and the executive. To that end the Constitution of
Bangladesh has ensuredf(in Articles 94 and 95 an independent
organ—the Supreme Court. Under article 102 the Supreme Court has
been empowered to scrutinise the governmental actions done in
violation of fundamental rights. Again, under Articles 7 and 26 the
Supreme Court exercises the power of judicial review i.e. to
examine the constitutionality of any law passed by the parliament.
And a glaring example to this is the historic Eighth Amendment
62 Constitutional and Parliamentary Supremacy

case. In that case the Supreme Court held the Eighth Amendment to
the Constitution unconstitutional and invalid

How far has the Constitutional Supremacy been Maintained

in Bangladesh
This aspect has aireath been discussed in the last part of
Chapter III and also see chapter XXIV.

Constitutional Supremacy and Judicial Review

The object of makin g a Constitution written is to limit the
.power of the government. The Constitution prescribes the manner
in which and within which its functions are to he exercised. it
imposes rc; ::1ion on executive and legislative. In most cases of
written Coitution a declaration is made in the Constitution that
this Constitution shall be the supreme and fundamental law of the
land and no other law can be inconsistent with it. And all oreans of
the government shall exercise their functions being within the limits
of the Constitution. But a question naturally arises as to this
constitutional supremacy - who will ensure this constitutional
supremacy and how ?

The answer to this question has two dimensions. Firstl y, the

primary responsibility to maintain constitutional supremacy lies
with state-men who under solemn oath of office begin their
governmental funciions. It is their both moral and legal duty to
maintain the constitutional supremacy as they are oath-hound to
preserve, protect and defend the supremacy of the Constitution. If
they violate their oath and the Constitution they can hardly be. the
experience teaches brought under prosecution and in most eases
they are imniune. while they are in power, from any proceedings to
the court. It is. therefore, their supreme sense of responsibility and
moral obligation which can lead them in a right track to maintain
the supremacy of the Const itutiit.

Secondl y , the declaration Of constitutional supremacy in the

Constitution implicitly presupposcs the existence of an independent
authority to examine the constitutionality of actions done by the
Constitution, Constitutional Law and Politics 63

executive and legislative. And this independent authority is the

judiciary. The Constitution itself creates an independent judiciary
and empowers it to test the constitutionalit y of every actions taken
by the executive and legislative. This is why the judiciary under a
written Constitution is called the guardian of the Constitution. The
Judiciary maintains the constitutional supremacy by its power of
judicial review.

Judicial review means that jurisdiction oithc court by which the

court declares any law made by the legislative inconsistent with the
Constitution or with the provisions of fundamental rights and
unconstitutional and void. According to Henry .1. Abraham 'Judicial
review is the ultimate power of any court to declare
unconstitutional and hence unenforceable (i) any law. (ii) any
official action based upon a law, and (iii) any other action by a
public official that it deems to be in conflict with the constitution."

Thedoctrine of judicial review' may, for the convenience of

research and study in constitutional and administrative law, be used
in two senses:

A. Doctrine of judicial review in the 5CflSC of constitutional

supremacy; and
B. Doctrine of judicial review in the sense of parliamentary
sovereignty.

A. Judicial Review in Constitutional Supremacy

As mentioned earlier the doctrine ofjudicial review in the sense
of constitutional Supremacy refers to the powers of the judiciary to
examine the constitutionality of laws made by the legislatures. This
is the primary and strict meaning ofjudicial review. But from
broader and liberal point of view the doctrine includes the
following things:

AbniIiim. I Ienr. Piz! .Juthcic,r 7he S1(/n(/nL' Cowi in the Governmental Process,
5th ed. (London : Allen and Bacon). P. 175
64 Constitutional and Parliamentary Supremacy

i) Judicial review of laws made by legislatures

ii) Judicial enforcement of fundamental rights enumerated in
the Constitution
iii) Judicial review of administrative actions under the
provisions of the Constitution
iv) Judicial review of administrative actions under statutory
law;
v) Judicial review of delegated law.

The last two of these are principally the subject matter of

administrative law.

Some aspects of all these will be discussed later under the

headings of "judicial review in Britain." and "judicial review in
Bangladesh.'

Who is to exercise the Power of Judicial Review in

a System of Constitutional Supremacy
In a governmental system with constitutional supremacy the
Constitution itself creates a body empowering it to decide whether
or not particular legislation contravenes the constitution and it is
natural to commit this function to the judiciary. And the fact is that
in most cases the highest seat of ordinary courts i.e. the Supreme
Court exercises this power of judicial review. But this is not the
case in everywhere. Somewhere provisions for separate
constitutional court is maintained in the Constitution. For example,
the Federal Constitutional Court of Germany which is not a
necessary part of ordinary court is invested with the power of
judicial review. 1 So is the case of Italian Constitutional Court.
Again, the French system provides for a peculiar body exercising
judicial review. The French Constitution is a written one with
constitutional supremacy. But the Supreme Court of France i.e. La

See Article 93 olthe Basic law for the Federal Republic of6cmiativ.
Constitution, Constitutional Law and Politics 65

Cour de Cczssatio has no power of judicial review.' The

Constitution provides for a Constitutional Council (article 56)
consisting of nine members. This Council has the power to test the
constitutionality of law. Before organic laws (ordinary law) are
promulgated, the Council must examine them to ensure that they do
not conflict with the Constitution (Article 61). If a law is declared
unconstitutional it cannot be promulgated or come into force
(Article 62). This device differs from judicial review in the sense
that the Council is not a court where judicial review operates
expost facto. Once the Council declares a law constitutional, it is
promulgated or comes into force and no further question as to the
constitutionality of that law can be raised. There is no appeal
against the decision of the Council which is binding on all public,
administrative and judicial authorities. To be mentioned here that
the power of judicial review as mentioned under this heading in
respect of its operating body refers necessarily to the doctrine of
judicial review in strict sense. Because the other elements of
judicial review are applied mostly by ordinary courts.

B. Judicial Review in the sense of Parliamentary Sovereignty.

Where there is parliamentary sovereignty, the Constitution is
unwritten and there is no distinction between fundamental law and
ordinary law. So the court cannot question the constitutionality of
law passed by the parliament. Because there is nothing as a touch-
stone to test the constitutionality of laws on one hand and on other
hand the doctrine of parliamentary sovereignty does not allow
anybody to test the legality of law passed by the parliament. In such
a system, therefore, there is no judicial review in strict sense. There
is judicial review in the following two inferior senses:
i) Judicial review of administrative action under statutory law;
and

"In France and other countries following the French tradition, the courts have no
power to hold an Act of legislature invalid, though it may violate a fundamental right.
In these systems the giving of such power to the courts would be regarded as
infringing the doctrine of separation of powers. It would be a usurplion by the judicial
authorities of a function which does not rightly belong to them. For the question is one
between the legislature and the electorate which the courts are considered incapable
of settling". Sir Ivor Jennings, The Law on the Constitution., Ibid., P. 258
66 Constitutional and Parliamentary Supremacy

ii) Judicial review of delegated law.

Of course, in these two inferior senses judicial review is more a

matter of administrative law than of constitutional law.

Judicial Review in the USA

The concept of constitutional supremacy was first used in the
U onstitution and the doctrine of judicial review was also first
introduced in USA.' The Constitution does not expressly confer the
power of judicial review to the Supreme Court of USA. But the
court assumed this power in 1 803 in the historic case- Marbuty V .
Madison. The ground of such assumption was that the Constitution
being the supreme law it should be the duty of the judiciary to see
whether the two organs of the government act in accordance with
the Constitution. The founders of the Constitution apparently
expected the court to exercise it. in the Federalist Papers Hamilton
said the courts would have authority to void laws contrary to the
Constitution. 2 In Marhwy V . Madison Chief Justice Marshal's
historic statement was-

Though it is sometimes argued that the concept of judicial review orginated in the
USA, the real history of it traces back to the beginning of 17th century of English
jurisprudence. It was first asserted by Sir Edward Coke, the Chief Justice of England
in 1610 in the celebrated case of Dr. Bonham where he staled emphatically —"That in
many cases the common law will control acts of parliament and sometimes adjudge
them to be utterly void; for when an Act of parliament is against common right and
reason or repugnant or impossible to be performed. the common law will control it and
adjudge such Act to be void." But for this bold pronouncement the brilliant Chief
Justice was removed from his office. Later oti the sovereignty of parliament was
affirmed and established b y the revolution with the legal consequence that the validity
of any law passed b y the parliament could not be questioned by an y person or body.
Thus though Coke lost his cause in England. he won it in America where his idea was
accepted and put into operation about two centuries later in the development and
adoption of the American doctriine of judicial review.
See further in Pirzada, S. Sharifuddin. /'undcvnental Rights and Constitutional
Remedies in Pakistan, (Lahore : All Pakistan Legal Decisions. 1966). 13.38-40.
Federalist Paper # 78 Ref. Welch, A merican Govrn,nent, 3rd ed. (New York : West
Publishing Company), P. 447
Constitution. Constitutional Law and Politics 67

"Ii is emphatically the province and duty of the judicial

department to say what the law is ..... . if two laws conflict each other,
the court ..... . must decide on the operation of each .... . If, then, the
courts are to regard the Constitution and the Constitution is superior
to an ordinary Act of legislature, the Constitution and not such
ordinary Act must govern the case to which they both apply. To
decide otherwise would be subversive to the very foundation of all
written Constitutions, would force the judges to close their eyes to
the Constitution .... all laws repugnant to the Constitution are void
and courts as well as other departments are bound by that instrument
(Constitution)." I

Similarly George With in Canton case says-

"If the whole legislature ..... . should attempt to overlap the
bounds prescribed to them by the people, I, in administering the
public justice of the country, will meet the united powers. at my seat
in this tribunal ; and pointing to the constitution, will say to them,
here is the limit of your authority; and hither shall you go, but no
further."'-

Also in United States V . Butler the US Supreme Court says-

"The Constitution is the supreme law of the land oidaincd and
established by the people. All legislation must conform to the principles it
lays down."

Now the doctrine of judicial review is a settled and firmly

established principle in the American constitutional jurisprudence.
It it is the most awesome and potentially the most effective weapon
in the hands of the US Supreme Court by which it plays the role of
a guardian of the Constitution.

Pirzada. S. Sharifuddin. Mid, P.42

Pirzada. S. Sharifuddin, Thid, P.41
68 Constitutional and Parliamentary Supremacy

Judicial Review in the UK

UK has no written Constitution. It has a constitutional system
with parliamentary sovereignty. Parliament is both a legislative
body and constitutional assembly; hence what parliament enacts is
a part of the Constitution. Consequently no distinction is made
between fundamental law and ordinary law and the same parliament
can change or abrogate any law whatsoever by the same procedure.
There is no touch-stone to justify the validity of Acts of parliament,
for no law exists in the UK higher than that made by the British
parliament. This is why there is no judicial review in strict sense in
Britain. Cockburn C.J. in Exp. Cannon Selwyn said-

"No court or judicial body in the country can set aside an Act of
parliament on the ground that it is illegal, immoral or
unconstitutional as can, easily be made by the US Supreme Court."

Sometimes questions are posed like- How do the British courts

treat the sovereignty of parliament ? or, How far British courts are
prepared to test the validity of law made by British parliament ?
The answer to these questions can be found in some important
judgments of British courts.

Firstly, in the Prince's case' in 1606 the court decided that in

considering the legality of an Act of parliament the court would
examine two conditions:

i) The law in question must be entered on the Parliament Roll;

and
ii) It must pass both the Houses (House of Lords and
Commons) and then receive the Royal Assent.

The court decided that if any of these two conditions were not
fulfilled or if any of the three bodies' (Lords, Commons & King)

8 Co. Rep. Ia (1606). Ref. Turpin, Cohn, British Government & the Constitution..
2nd ed, (London: Weidenfild and Nicolson. 1990), P.25
Constitution, Constitutional Law and Politics 6S

approval lacked, the court would not regard it as an Act of

Parliament.

Similarly it was held in Edinburgh & Dalkeith Railway Co. V .

W ouchope 1 in 1842 that if an Act was expressed to have enacted by
the Queen, Lords and Commons, the courts would not inquire
whether it was passed properly following the strict procedure or
whether it represented the will of parliament. The famous dictum of
Lord Campbell was-

"All that a court of justice can do is to look to the parliamentary

roll ; if from that it should appear that a bill has passed both the
Houses and received the Royal Assent, no court Scan inquire into the
mode in which it was introduced into parliament, nor into what was
done previous to its introduction, or what passed in parliament during
its progress in its various stages through both the Houses"

In this respect Professor Dicey says that the principle of

parliamentary sovereignty means that parliament has under the
English constitution, the right to make or unmake any law
whatsoever; further that no person or body is recognised by the law
of England as having a right to override or set aside the legislation
of parliament. 2 As Cohn Turpin says that the legislative supremacy
of parliament was assured by the Glorious Revolution of 1688
which established the primacy of statute over prerogatives.
Academic lawyers, drawing on works of political science, embraced
it as orthodox doctrine and the courts have pronounced it as law. It
is at once historical reality, theory of the constitution and a
fundamental principle of the common law. In accordance with this
principle the courts hold that statutes enacted by parliament must be
enforced and must be given priority over rules of common law,
international law, subordinate law and earlier enactments of
parliament itself.3

(1842)8 Cl & Fin. 710, Source: ibid, P.25

2 1iiy, AN , Introduction to the Study of the Law oft he Constitution, 10th ed.,
(London: ELBS), P. 39-40
Turpin, Cohn, Ibid, P 25
70 Constitutional and Parliamentary Supremacy

Secondly, even if an Act of parliament comes into conflict with

or is contrary to international law, no court can declare it illegal.
This was affirmed in Clienny V . Conn' . The court held-

"What the statute itself enacts cannot be unlawful ......It is the

law which prevails over every form of law and it is not for the court
to say that parliamentary enactment, the highest law in this country,
is illegal .... The Finance Act prevails over an international
convention (Geneva Convention) .......and that what parliament
enacts can not be unlawful."

Thirdly, no British court can declare an Act illegal even if it

comes into conflict with the principle of natural justice. Willes J. in
Lee V . Bua'e & Torrington Rly C0.2 said-

"If an Act of parliament has been obtained improperly, it is for

the legislature to correct it by repealing it; but so long as it exists as
law, the courts are bound to obey it."

Likewise Lord Reid in British Railway Board V . I'ickin 3 held-

"In earlier times many learned lawyers seemed to have believed
that an Act of parliament could be disregarded in so far as it was
contrary to the law of God or the law of nature or natural justice, but
since the supremacy of parliament was finally demonstrated by the
revolution of 1688 any such idea has become obsolete."

Lord Simon of Glassdale said-

"if there is evidence that parliament may have been misled into
an enactment, parliament might well indeed, would be likely to wish
to conduct its own inquiry. It would be unthinkable that two
inquiries- one parliamentary and the other forensic- should proceed
concurrently."

I (1968)1 All ER 779 Source: Turpin, Ibid, P.24

2 (1871) LR6 CP 576 Source: Turpin, Ibid. P.27
(1974) AC 765 (HL), source: Turpin, Ibid, P.27-27
Constitution, Constitutional Law and Politics 71

Fourthly, even if an Act of parliament conflicts with another

Act, no court has any power to declare the conflicting Act illegal. It
was held in V auxhall Estate Ltd. V . Liverpool Corporation that in
law-making parliament can neither bind its successors nor bound by
its predecessors. If it is found that a present Act is in conflict with a
previous one, the relevant provisions must be regarded as impliedly
overridden by the inconsistent provisions of the present Act.
Similarly it was held in Ciodden V . Hales'-

"If an Act of parliament had a clause in it that it should never he

repealed, yet without question the same power that made it may
repeal it."

It was held by House of Lords in Duport Steels Lid V . Sirs 2 -

it is not for the judiciary to decide whether any

changes should be made to the laws as stated in the Acts ........
to meet the judge's idea of what justice requires ......In
controversial matters .....there is room for differences of
opinion, as to what is expedient, what is just and what is
morally justifiable . ....... the judges may say so and invite
parliament to reconsider its provisions. But he (the court) must
not deny the statute .....Under our constitution it is parliament's
opinion on these matters that is paramount."

The above discussion makes it clear that in no way the doctrine

of judicial review, as it is understood in its substantive or strict
sense, applies to the British constitutional system. And the British
courts are in no way prepared to examine the validity of law passed
by parliament. But in British system there is judicial review in
narrower sense i.e. in the following two senses:

i) Judicial review of administrative actions; and

( 1686) 11 St. Tr. 1165, 1197

2
(1980) 1 WLR 142 (HI), Source: Furpin. Ibid. P.47
72 Constitutional and Parliamentary Supremacy

ii) Judicial review of delegated law.

This narrower sense of judicial review is applicable to all legal

systems for the maintenance of rule of law in a society. And in this
sense judicial review is principally the subject mater of
administrative law. Whereas the judicial review in strict sense is
needed for the maintenance of constitutional supremacy. And in
this sense judicial review is the subject mater of constitutional law.

Judicial review of administrative action means the power of the

superior courts to review the legality and validity of actions and
decisions of persons and bodies exercising administrative powers,
whether of a legislative, executive or judicial or adjudicatory
character.' In Britain most of the powers of the government are
subject to judicial control because in a society under rule of law
bodies performing public functions are subject to judicial review. A
person wishing to challenge the validity of an exercise of public
power may seek leave in the Queen's Bench Division to bring an
application for judicial review. Leave will usually be granted if the
applicant has a sufficient interest in the matter, has not been guilty
of undue delay and presents an arguable case.2

Judicial Review in Bangladesh

Under a written Constitution like that of Bangladesh the
doctrine of judicial review ,can be explained from different
perspectives it attaches, particularly both from the view point of
constitutional law and of administraive law.

Walker, David M, The Oxford Companion to Law, (Oxford Clarendon Press, 1980),
11.675
Application for judicial review is made under order 53 of the Rules of the Supreme
Court. A statutory basis for this procedure appears in section 31 of the Supreme Court
Act, 1981. It allows an application to cover under one umbrella all the remedies of
Certiorari, Mandamus and also declaration and injunction.
Constitution, Constitutional Law and Politics 73

Firstly, the strict or substantive meaning of judicial review has

been ensured in Articles 7, 26 and 102(2) of the Constitution of
Bangladesh. Article 7 declares the core of constitutional supremacy.
It says -"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." Though the provisions of
Article 7 gives an umbrella—coverage of constitutional supremacy
to the whole Constitution, Article 26 gives a double sanctity on the
provision of fundamental rights. It says-

"26(1) All existing law inconsistent with the provisions of this

part (Fundamental Right) shall, to the extent of such
inconsistency, become void on the commencement of this
Constitution.

(2) The state shall not make any law inconsistent with any
provisions of this part, and any law so made, shall, to the extent
of such inconsistency, be void."

Articles 7 and 26, therefore, give the substantive law of judicial

review and Article 102(2) gives the implementing law of it, for it
provides for the procedure- how a law which is inconsistent with
the provisions of the Constitution can be declared unconstitutional
by issuing prohibition, mandamus, and certiorari.

Secondly, for the enforcement of fundamental rights specific

provisions have been inserted in the Constitution. Part Ill of the
constitution provides for 18 fundamental rights and under Article
102(1) the High Court Division of the Supreme Court can issue
direction and orders for enforcement of these rights. It is pertinent
to mention here that in Britain there is nothing as fundamental right
because it has no written constitution. All rights are ordinary rights
which are protected under statutory law and common law; not by
any constitutional guarantee like Bangladesh.
74 Constitutional and Parliamentary Supremacy

Thirdly, administrative actions may be reviewed undet

constitutional provisions. Because under Article 102(2) of the
Constitution the Supreme Court can examine the validity of actions
performed by any public officials or bodies.

Fourthly, a large number of administrative actions are reviewed

under statutory law. Because constitutional review of administrative
actions under Article 102(2) is possible only when "no othei
equally efficacious remedy is provided by law (statutory law)".
Under various Acts of parliament higher courts i.e. the Supreme
Court as well as lower courts and tribunals have power to review
the administrative actions.

Fifthly, like in Britain judicial review of delegated law is

possible in Bangladesh. It is a general rule that a delegated law
must not be inconsistent with its parent law. If any delegated law is
proved to be inconsistent with the parent act, the court can declare
that delegated law illegal and ineffective.
Constitution, Constitutional Law and Politics 75

CHAPTER V

FUNDAMENTAL PRINCIPLES
OF STATE POLICY
Modern states are welfare states and the principal purpose of
such a state is public welfare. This trend of public welfare is being,
to some extent, reflected in most of the written constitutions of
states when they adopt some directive principles in their
constitutions. The underlying philosophy behind the adoption of
such principles is that they will obligate the state to take positive
action in certain direction in order to promote the welfare of the
people and achieve economic democracy.

The idea of directive principles in the Constitution was first

introduced in the Irish Constitution of 1937, Article 45 of the Irish
Constitution provides for some principles under the heading of
Directive Principles of Social Policy." Following this Irish example
the idea has got place in the Constitution of Burma (Mayanrnar) in
1949, of India in 1950, of Pakistan in 1956 and 1962. And so has
been the case of the Bangladesh Constitution of 1972. The
principles have been adopted under the heading of "Directive
Principles of State Policy in the Indian Constitution, Principles of
State Policy" in the Pakistan Constitution of 1962 and
"Fundamental Principles of State Policy" in Bangladesh
constitution.

"Directive or Fundamental Principles of State Policy" as a term

of constitutional jurisprudence has not got any universal definition.
But as the term indicates it means primarily those principles which
are considered fundamental in the matters of policy formulating by
the government. From the view point of Bangladesh Constitution it
may be said that Fundamental Principles of State policy are those
principles which act as fundamental guide to the policy making, be
it social, economic, administrative or international, governance of
the country, making laws and interpreting the Constitution and
laws.
76 , / Fundamental Principles of State Policy
dS)4 /
Nature of Directive Principles
Ardistinguishing feature of directive principles which is
invariably found in all constitutions adopting these principles is that
these are not enforceable in a court of law'This non-justiciability of
these principles have paved the way for critics to potrait them in
variety of descriptions.

First4these are described as 'beau ideal" in the Constitution, i.e.,

the highest standard of excellence in the Constitution. Because they
embody the principles of high ideals like economic emancipation,
eradication of poverty, i I leteracy etc.'

Second,khese are described as 'veritable dustbin of sentiment,'2

for they are the best idealistic words written down in the
Constitution without providing anything for their enforcement.
They are, therefore, nothing but the mere expression of good
sentiment of the Constitution makers. i

Third, (these are sometimes described as 'decoratives in the

ConstitutionTUShar Chatterjee, a communist member of Indian
parliament being very harsh in assessing the utility of the directives,
commented that he could not but feel that these solemn declarations
in the Constitution were not directives but mere decoratives in the
constitution3.

Professor K.C. Wheare has described them as 'paragraphs of

generalities' into the Constitution. He has severely critcised
insertion of such decoratives in the Constitution. He has doubted
"whether there is any gain, on balance, from introducing these
paragraphs of generalities into a Constitution anywhere at all, if it is
intended that the Constitution should command the respect as well
as the affection of the people. If the Constitution is to be taken

Kapoor, A .C, Select Constitutions, 12th ed. (New Delhi: S. Chand & Co. 1989), P.93
(Part II)
Krishnamachari, T.T, a member of the Indian Constituent Assembly. Quoted by
Kapoor, A C, Ibid, P.94.
Quoted by Kapoor, A.C, ]bid, P.101
COnstitution, Constitutional Law and Politics 77

seriously, the interpretation and fulfillment of these general objects

of policy will raise great difficulties for courts and for legislatures
into conflict and disrepute. If these declarations are, however, to be
neglected, if they are to be treated as 'words', theyiill bring
discredit upon the Constitution also."

Professor Ivor Jennings has also questioned the reasonabless

of inserting such directives in a Constitution when he descri1es
them as "the ghost of Sidney and Beatric Webb Stalk through the
pages of the text" and "expression of Febian Socialism without\
socialism.112

Fourth, 4hese principles are also described as "a moral homily

on the one hand, and as a manifesto of aims and aspiratTns on the
other handW for they are all principles relating to economic, social
und cultural rights which are not a matter of immediate
achievement. They are goals to which the state has to reach and,
keeping in line with the socio-economic progress, the state will
implement them step by step. They, therefore, work as programmes
of the government.

Why Economic Social and Cultural Rights are

Enumerated in the Directive Principles of State Policy

It has been almost a common feature of all the constitutions

t;ontaining directive principles that the part of these directives of the
onstitution contains economic, social and cultural rights whereas
he part of fundamental rights contains civil and political rights.
Economic, social and cultural rights have found their origin
primarily in the Socialist and Marxist revolution of the early 20th
century. Following the Socialist October revolution this new
category of citizens' rights first got their constitutional recognition
in the Soviet Constitution of 1918. Thenceforth they are being
gradually included in most modern constitutions as 'programme' or

Wheare. K.C, Modern Constitutions, (London : Oxford University Press, 1975), P.

47
Quoted by Kapoor, AC.. Ibid, P. 101.
Gledhill, Alan. Pakistan , ( London: Stevens and Sons Ltd. 1957). P. 145
78 Fundamental Principles of State Policy

'manifesto rights of a promotional nature.' They are rights of

promotional nature in the sense that their implementation and
enforcement depends on the economic progress and availability of
resources in the country. !1 - these rights are placed in the part of
fundamental rights of the Constitution, then the state would be
legally bound to enforce them and the citizens would have a legal
right to get them enforced through the courts and it would virtually
lead a developing state with limited resources into a precarious
problem. This is why all economic, social and cultural rights are
placed in the part of directive principle as rights of a promotional
nature not with any constitutional guarantee to enforce them
immediately but with pledge to take steps to the maximum of
available resources with a view to achieving progressively the full
realisation of these rights. On the other hand, the enforcement of
civil and political rights are not necessarily connected with the
econoni -ogress and natural resources; they can be enforced in
almost every circumstances.

Distinction between Fundamental Rights and

Directive Principles
There are some fundamental distinctions between directives and
fundamental rights.

4irst, when certain human rights are written down in a

Constitution, a supreme law, and are protected by constitutional
guarantees they are called fundamental ri g hts. Directive Principles,
on the other hand, are policies relating to social, economic and
cultural rights which are to be followed in governance of the
country.

Second, fundamental rights are enforceable in a court of law

and they
courts can enforce theni against the government. Again, the courts
are competent to declare as void any law that is inconsistent with
any of the fundamental rights. The directives, on the other hand, are

Bad. Dr. M. Ershadul. fn:ernarional Concern for the Promotion and Protection of
Ihanan Rights, (The Dhaka L1 nivisitv studies, Part-F Vol II. No.1. 1991) 1 P.24
Constitution, Constitutional Law and Politics 79

not enforceable in a court ? law and they do not create any

justifiable rights in favour of individuals. The courts cannot compel
the government to carry out any of the directives. Again, the courts
cannot declare any law void, which is otherwise valid, on the
ground that it contravenes any of the directive principles.

Third, fundamental rights are manday in nature whereas

directives are declaratory in nature as t ey have expressly been
excluded from the preview of the courts. -

c- Fourth, the fundamental rights create negative obligation on the

state, i.e., the state is required to refrain from doing something. The
directives, on the other hand impose positive obligation on the
state i.e. to implement these principles the state will have to achieve
certain ends by its actions.

Fifth, if there is any conflict between directives and

fundamental rights, fundamental rights will prevail over the
directives. -

Sixth, the directive principles may be described as inchoate

fundamental rights while the fundamental ri g hts are full-fledged i.e.
the former requires legislation to become effective while the latter
need not require such legislation. And so long there is no law
carrying out the policy laid down in directives neither the state nor
in individual can violate any existing law or legal right under the
colour of directive principles.

Seventh, fundamental rights are at assuring

political freedom to citizens b y protecting them against excessive
state action while dJithe pLi 1esreaimedat securing social
and economic freedoms by appropriate state action.

OrqW Significance of the Directive Principles

/ When the directive principles are not judicially enforceable it is
iery natural to comment that they are mere decoratives in the
80 Fundamental Principles of State Policy

Constitution and most of the prominent writers, as mentioned

earlier, have strongly criticised their inclusion in the Constitution.
But it is not proper to say that they are totally useless. They have
some important significancel

First,irective principles have great political importance. If the

government fails to carry out these directives no court can compel
the government to implement them. Yet these principles have been
declared to be fundamental in the governance of the country and a
government which rests on popular vote can hardly ignore themIf
any government", as Dr. Ambedker said, "ignores them, they will
certainly have to answer before the electorate at the election time")
It is, therefore, not correct to criticise these principles as
meaningless and useless. The actions of the government under
democratic system are subject to scrutiny by the masses and the
opposition. If the government, being in favourable situation and
proper means to implement these, pursues a policy not in
accordance with the principles or fails to implement these, it would
be a patent weapon at the hand of the opposition to discredit the
government, lithe government violates fundamental rights it has to
answer before the court but if it neglects directives it has to answer
before the highest tribunal- the public opinion which will bring its
ultimate fall in the next election. Thus the sanction behind directive
principles is a political one which has a greater importance than
fundamental rights in respect of keeping a continuing responsible
government.

Secondjthe directives have a great role to play in the

interpretation of the Constitution and other law/'Though courts
cannot declare a law invalid on the ground that it contravenes a
directive principle, nevertheless the constitutional validity of many
laws can be maintained, as has been done in India, 2 with reference
to the directives so that they do not serve as 'mere homily'. 3 Article
8(2) of the Constitution specifically allows the courts to refer to

Quoted by Mahajan, V. D., The Constitution of India, 12th ed, P. 185

State of Biher V. Kameshwar AIR 1952 SC
Mahajan, V. D, The Constitution of India, 12 ed, (1989), P. 184
Constitution, Constitutional Law and Politics 81

these principles for understanding the meaning of the provisions of

the constitution which are doubtful or ambiguous. Moreover, like
the Magna Carta in England and the Declaration of Independence in
America these directives are bound to influence the judges to a
great extent in interpreting the Constitution and law. In interpreting
fundamental rights the expressions like 'public interest', 'public
purpose', 'reasonable restriction' etc. may be explained by the courts
in the light of and paying due emphasis on these directives since the
Constitution holds them fundamental in the governance of the
country.

Third/directive principles have both idealistic and educative

value. They have idealistic value in the sense that they outline the
ideal of a welfare society/They emphasise, in amplification of the
preamble, that the goal of the bodypolity of the state is a welfare
state where it has a positive duty td ensure to its citizens social and
economic justice and dignity of individuals. And by the proper
implementation of these directives that goal can be realised(Fhey
have educative value in the sense that they are permanent reminder
for those in power for the time being that the goal of the state is to
introduce economic democracy

Conventions and Directive Principles

Some authors venture to find similarities between the
conventions in British constitutional system and . directives in
written constitution on the ground that like conventions directives
are unenforceable and both are considered as fundamental to the
governance of the state.' Again, sometimes question like- In which
sense may conventions of the British Constitution be compared
with the fundamental principles of state policy?- is seen in
competitive examinations of the law faculties in Bangladesh. Such
a question obviously brings the answerer into a precarious problem,
for in true sense conventions of British constitutional system can, in
no way, be compared with directives of written constitutions.

Tope, T. K. constitutional Law of India. 1st ed. (EE3C. India. 1982). P.248
Mahajan V.D, The Constitution of India, Ibid. P. 183
82 Fundamental Principles of Slate Policy

Directives may have a resemblance with conventions on point of

unenforceability or like this. But this resemblance or comparison is
a quite different perspective; it has neither any relevancy nor does it
bear any significance in the field of constitutional law: it does, in no
way, touch the substance or philosophy of the two. Because what
are conventions in British constitutional system are like steering
wheel of the whole structure of the governmental system without
which the British constitutional system would be unthinkable. The
directives in a written constitution has nothing to do with it; they
cannot e considered even an appendage to the actual working of
the governmental system. Secondly, conventions in coustitutional
jurisprudence are political practice which develop from long time
constitutional activities. Directives, on the other hand, are some
principles concerning social, economic and cultural rights which
have nothing to do with political practice.

Directive Principle under the Constitution of Bangladesh

Unlike other written constitutions the directive principles in the
Bangladesh Constitution have got their place under the heading of
"Fundamental Principles of State Policy". Articles 8-25 of part II of
the Constitution contain all the principles. Under article 8 of the
original Constitution of 1972 (i) Secularism. (ii) Nationalism. (iii)
Socialism; and (iv) Democracy- these four principles were
designed to be major fundamental principles and all other principles
derived from these four as set out in part 11 were to constitute the
whole body of fundamental principles of state policy. Articles 9, 10,
11 & 12 elaborated those four major principles. But during the first
martial law regime a drastic change was made in these four major
principles. Under this change the term 'socialism meaning
economic and social justice' was substituted for the principle
'Socialism' and 'absolute trust and faith in the almighty . Allah' was
substituted for the principle 'secularism'. The elaboration under
articles 9, 10, 11 & 12 were omitted and some new principles have
been introduced in the place. Article 8, however, as it stands now
deals with the following four major fundamental principles: (i)
Absolute trust and faith in the Almighty Allah, (ii) Nationalism,
(iii) Democracy; and (iv) Socialism meaning economic and social
justice.
Constitution, Constitutional Law and Politics 83

Fundamental Principles- Where to be Applied

According to Article 8(2) the fundamental principles shall be
applied in the following spheres:
(i) they shall be flmdamental in governance of the country
(ii) they shall be applied in making laws
i) they shall be a guide to the interpretation of the
Constitution and of the other laws of- Bangladesh, and
(iv) they shall form the basis of all works of the state and of its
citizens.
But they shall not be enforceable in a court of law.

Short Description of the Fundamental Principles

All the fundamental principles as set out in the Constitution
ma\'. for the convenience of study, be classified into following fbur
groups:

A. Fundamental Principles Relating to Economic Ideal

1. Eradication of social and economic inequality [Art. 19(2)]
2. Equitable distribution of wealth among citizens (ditto).
3. Uniform level of economic development throughout the
Republic (ditto).
4. Rural electrification (Art. 16).
5. Development of cottage and other industries (ditto).
6. Improvement of education (ditto).
7. Improvement of communication (ditto).
8. A constant increase of productive forces through planned
economic growth (Art. 15).
9. A steady improvement in the material and cultural standard
of living of the people (ditto).
10. To secure the basic necessities of life including food,
clothing, shelter, education and medical care (ditto).
11. To ensure the right to a guaranteed employment at a
reasonable wage (ditto).
84 Fundamental Principles of State Policy

12. To secure the right to reasonable rest, recreation and leisure

(ditto).
13. To secure the right to public assistance in cases of
undeserved want arising from unemployment, illness or
disablement or suffered by widows or orphans or in old
age, or in other such cases (ditto).
14. For economic development state will ensure three types of
ownerships: state ownership, co-operative ownership and
private ownership (A rt. 13).
15. Right to be paid on the basis of the principle- "form each
according to his abilities to each according to his work
(Art. 20).

B. Fundamental Principles Relating to Social Ideal

1. Raising of the level of nutrition and the improvement of
public health (Art. 18).
2. Prevention of consumption, except for medical purposes or
for such other purposes as may be prescribed by law, of
alcoholic and other intoxicating drinks and of drugs which
are injurious to health (ditto).
3. Prevention of prostitution and gambling (ditto).
4. Free and compulsory education for all children (Art. 17).
5. Removing illeteracy (ditto).
6. Emancipation of peasants and workers from all forms of
exploitation (Art. 14).
7. To ensure equality of opportunity to all citizens (Art. 19).

C. Fundamental Principles Relating to Legal and

Administrative Reforms
1. Separation ofjudiciary from the executive (Art. 22)
2. Conserving the cultural traditions and heritage of the
people (Art. 23).
3. Improving the national language, literature and the arts
(ditto).
Constitution, Constitutional Law and Politics 85

4. Protection against disfigurement, damage or removal of all

monuments, objects or places of special artistic or historic
importance or interest (Art. 24).
5. Promotion of local government institutions (Art.9).
6. Participation of women in all walks of national life
(Art. 10).

D. Fundamental Principles Relating to International Relations

International relations of our state shall be based on the
following principles as enunciated in article 26:
I. Respect for national sovereignty and equality.
2. Non-interference in the internal affairs of other countries.
3. Peaceful settlement of international disputes.
4. Respect for international law and the principles enumerated
in the UN Charter.
5. Renunciation of the use of force in international relations
and general and complete disarmament.
6. Respect and support for 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.
7. Support for the oppressed peoples throughout the world
waging a just struggle against imperialism, colonialism or
racialism.
To consolidate, preserve and strengthen fraternal relations
among Muslim countries based on Islamic solidarity.

Implementation of Fundamental Principles in Bangladesh

32 years have passed since we achieved our independence. But
none of fundamental principles have been implemented to its full
swing. Rural electrification, promotion of cottage industries,
separation of judiciary from the executive, eradication of poverty
and unemployment, population control— all these are yet to be done.
It, however, would be wrong to say that nothing has yet been
achieved. To some extent rural electrification, communication
development, women education etc. have been done. State has also
passed law fixing a ceiling for the land to be possessed by an
86 Fundamental Principles of State Policy

individual; it has made primary education free and compulsory:

laws have been made as regards prohibition of intoxicating drinks
and drugs. Much effective work, however, had not been done. It
cannot be denied, however, that the problems like eradication
poverty, achieving full employment, equitable distribution of
national wealth, raising living standard are colossal, indeed, and no
government whatever be its complexion can achieve miracles.
Several decades may take to- achieve the goals set forth in the
tundamental principles.

Decisions on Fundamental Principles of State Policy

Indiaa Jurisdiction
In Indian jurisdiction there has been a quite good number of
decisions on the relationship between Fundamental Rights and
Fundamental Principles of State policy. A close observation of
some of these decisions will give an idea that the Indian Supreme
Court has taken the following, two approaches regarding the
Directive Principles.

I. Strict Legalistic Approach:

At the initial stage the Indian Supreme Court took the view that
Directive Principles do not have much legal value. In the case of
conflict between the two Fundamental Rights will prevail. This is
evident li-om Sankari Prasad's case (1952) SCR 89, Mac/pus- p.
C'hainpaka;i ( 195 1 ) SCR 525 and In re Kerala Education Bill 1957
(1959) SCR 995.

2. Harmonious Construction Appraoch:

Since the Go/ak Nat/i Case in 1967 the Indian Supreme Court
has taken this approach. In Golaknath CU,cL' (1967) SCR 762 it was
held that Fundamental Rights and Directive Principles form an
"inte grated scheme" and they should be given effect to as far as
possible. Any collision between the two should he avoided,
Constitution, Constitutional Law and Politics 87

In Funclaniental Rig/its case it was held 'the framers of our

Constitution had conferred Fundamental Rights on the people by
enacting Part 111. Those rights were not an end in themselves but
were the means to an end, the end being specified in Part IV.

In Minerva tvIilIs case Chandrachud C.J. held that FRs are

means to achieving the objectives set out in the DPs. ' The goals set
out in Part IV have to be achieved without the abrogation of the
means provided f'or by Part Ill. It is in this sense that Parts Ill and
IV together constitute the core of our Constitution and combine to
form its conscience. Anything that destroys the balance between the
two parts will ipso flicto destroy an essential clement of the basic
structure of our Constitution."

Before the enactment of the 25th Amendment of' the

Constitution of' India in 1971 the provision was that Fundamental
Rights prevailed over Directive Principles and that a law enacted to
implement a Directive Principles could not he valid if' it conflicted
with a Fundamental Rights. Article 31C was inserted by the
Constitution (25° Amendment) Act 1971 and it protected laws
giving effect to the Directive Principles laid down in Article 39(h)
and (c) from unconstitutionality on the ground of contravention of
Articles 14 and 19 and 31. Article 31 C as it stood before the 42
Amendment in 1976 was as follows:

"Notwithstanding anything contained in Article 13 110 law

giving effect to the policy of the state towards securing the
principics specified in clause (b) or clause (c) of Article 39 shall be
deemed to be void on the ground that it is inconsistent with or takes
away or abridges any of 'the rights conferred by Articles 14, 19 or
88 Fundamental Principles of State Policy

and no law containing a declaration that it s for giving effect to

such policy shall be called into question in any court on the ground
that it does not give effect to such policy."

The objective behind Article 31C was to establish socialistic

society. Article 3 IC had two parts. The first part protected a law
giving effect to the policy of the state towards securing the
principles specified in Article 39(b) and (c) from challenge on the
ground of infringement of the rights under Articles 14, 19 and 3 1.
The second part of Article 3 IC sought to oust the jurisd iction of the
courts to find out whether the law in question gave effect to the
principles of Article 39(b) and (c). Thus Article 31C paved way for
enacting review proof legislation if such legislation was enacted to
promote the policy laid down in Article 39(b) and (c) and the courts
will not be able to scrutinise whether the law is enacted in fact to
promote that policy.

The validity of the 25th Amendment introducing Article 31C

was questioned in Keshavananda Bharti V . Slate of Kerala
(Fundamental Rights case) AIR 1973 SC 1461. The SC held valid
the first part of Article 31C which provided that a law giving effect
to the principles laid down in clauses (b) and (c) of Article 39
would not be questioned on the ground that it is inconsistent with or
took away the rights conferred by Articles 14, 19 and 3 1. However,
the second part of Article 31C which provided that "No law
containing a declaration that it is for the giving effect to such policy
shall be called into question in any court of law on the ground that
it does not give effect to such policy" was declared invalid.

Positive Aspect of Keshavananda:

(I) By upholding the first part of Article 31C the legislators in
India have been conceded greater power to implement the
socialist and socio-economic programmes.
Constitution, Constitutional Law and Politics 89

(2) Invalidation of second part of Article 31C avoids the

possibility of the state legislatures immunising all sorts of
laws from judicial scrutiny.
(3) To prevent each and every legislature to enact review proof
legislation in the name of Article 39(b) and (c) could have
led to socio-econornic chaos in the country.
(4) There should be a nexus between Articles 39(b) and (c) and
the object of acquisition: where the inputs of valuation
prescribed by the statutes are wholly irrelevant or
unconnected with the social good, Article 31C may not be
saved by the statute.

This means that a law enacted to implement Article 39(b) and

(c) would not be challengeable under Articles 14 and 19, but the
courts have the power to go into the question whether the law in
question does really achieve these objectives or not. Thus when a
law is challenged, the courts would have the power to consider
whether it could reasonable be described as a law giving effect to
the policy of the state towards securing the said aims.
(4211d Amendment) Act 1976 the
In 1976 by the Constitution
scope of Article 3 IC was further extended. The first part of Article
31C now says that no law giving effect to any of the Directive
Principles shall be deemed to be void on the ground of
inconsistency with A rticles 14 and 19. Thus primacy was given to
Directive Principles over Fundamental Rights and the protection
was extended to legislation for implementing of all or any of the
Directive Principles enumerated in Part IV. The validity of this
change in Article 3 IC came up in the Minerva Mills case AIR 1980
SC 1789. The Supreme Court struck down section 4 of the
(42nd Amendment) Act 1976 amending Article 31C
Constitution
giving primacy to Directive Principles over Fundamental Rights.
Chandrachud C.J. broke the doctrine that Directive Principles and
Fundamental Rights supplement and complement each other; in
90 Fundamental Principles of State Policy

case of conflict Fundamental Rights must prevail. So the amended

Article 31C which gave priority to laws implementing Directive
Principles in Article 39(b) and (c) was held void because it 'tore
away the heart of basic fundamental freedoms." Under the pretext
of furthering the objectives found in the Directive Principles, the
Fundamental Rights enshrined in Part II of the Constitution cannot
stand abrogated and thereby relegated as becoming unenforceable
and that would certainly amount to subverting the Constitution by
destroying its basic features.

In LJimi Kris/man Vs. Stale of A, P. (AIR 1993SC 2] 78) the

Supreme Court held that Fundamental Rights and Directive
Principles are supp]ementary and complementary to each other and
Fundamental Rights must he construed in the light of the Directive
Principles. The Court also held that Fundamental Rights are but a
means to achieve the goal indicated in the Directive Principles.

Bangladesh Supreme Court

The Directive Principles as they appear in the Constitution of
Bangladesh have almost the same status compared to Indian
Constitution. Article 8(2) specifically provides that these principles
shall not be judicially enforceable. Again, Article 47(l) provides
that parliament can make review proof legislation in certain
specified matters stipulated in Article 47(1) with a view to
implementing any of the Fundamental Principles in the
Constitution. Unlike the Indian scheme this has been done in the
very original Constitution of Bangladesh. Thus with reference to
implementation of any of the Fundamental Principles parliament
can make law or amend any existing law regarding six specified
matters stipulated in Article 47(1) and if such law comes into
conflict with any of the fundamental Rights, such law will not be
void. In other words, parliament may make fundniental Rights
subordinate to the Fundamental Principles in certain cases. This has
been done with a view to adopting welfare measures in the country.
['here has so far been a very few cases dealing with the
Constitution, Constitutional Law and Politics 91

Fundamental Principles or the relationship between Fundamental

Principles and Fundamental Rights.

the
In Kucfra'-e-EIahi V . I3anglailesI? -14 DLR (AD) 3 19 (1992)
appellant sought enforcement through Fundamental Principles
pressing in aid of the provision of Articles 7(2). The A[) held that
these principles are not law and there is no question of application
of Article 7. Article 9 and fundamental Principles are not judicially
enforceable. They are in the nature Of programme for social
development. Petitioners challenged the Constitutional validity of
the Bangladesh local Government (Up7illa Parishad and FJpzilIa
Administration Re-organisation) (Repeal) Ordinance 1991 on the
ground that this Ordinance is inconsistent with Articles 9, II. 59
and 60 and as such it is void in terms of Article 7(2) of the
Con sti tut ion.

In view of the riafir liossain' case decided in 1999 by the

Appellate Division which is also called separation 4judiciary case.
it is sometimes contended that in this case the Appellate Division
has implemented one of the 1indamcnta1 principles of our state
policy and this findaniental principle appears in Article 22 which
states that"The state shall ensure the separation of judiciary from
the executive organs of the state." The question is- did the
Appellate Division give directions to the government oil basis
of the proposition that the fundamental principles in the constitution
are enforceable? Obviously the Appellate Division did not give any
decision oil point. However, it is to be borne in mind that the
Appellate Division in that case did no where mentioned in the
judgment that it gave effect to Article 22 of the Constitution
although in elThct it give effect to that Article. Secondly, the ratio ol
the decision clearly speaks of something else than the doctrine of
fundamental principles of state policy. In Masder Hoss(in case the

SCc,L'lao.tIinis/rv of Finance r %Id. A tardiir Ifossain and Qi/wrs. 52

DlR(AD) 82.
92 Fundamental Principles of State Policy

Appellate Division did not overrule the decision in Kudrat-e-Elahi

V . Bangladesh 44 DLR (AD) 319 (1992). His Lordship Mr. Justice
Latifur Rahman stated:

"Article 22 of the Constitution contemplates separation of

judiciary from the other organs of the state and it is for the
legislature to decide on the issue. Further, if we say that no
constitutional amendment is necessary then the existence of Article
22 will be nugatory which cannot be the intentions of the framers of
the constitution." (See paragraph 88).

From the part of the judgment by His Lordship Mr. Justice

Mustafa Kamal it is clear that the ratio of the judgment is based on
observation of implication and significance of some terms and
provisions specifically mentioned in the constitution, e.g. the
President's rule making power under Articles 115 and 133 of the
Constitution and whole scheme of the judiciary within the spirit of
the constitution of Bangladesh.
Constitution. Constitutional Law and Politics

CHAPTER Vi

FUNDAMENTAL RIGHTS
Before understanding fundamental rights one should have idea
about rights and human rights.Right means a claim of some
interests adversed by an individuaT or a group of individuals which
has either moral or legal basis and which is essential for his
development in the society. In a sense right is not created by law; it
originates itself as an obvThus result of mutual interaction between
man and society. Rights are primarily divided into two categories-
moral rights and legal rights. Moral rights are those rights which
have their basis on the rule of natural justice and the violation of
which results in moral wrong. Legal rights, on the other hand, are
those rights which are recognised by the positive law of country
and can be claimed on legal basis and the violation of which results
in legal wrong. As mentioned earlier right originates in the society
and remains as a moral right so long it is not recognised by law.
Whenever a law recognises it and secures its protection, it
transforms into a legal right. All legal rights in this sense are moral
rights and the distinction between the two is one of degree rather
than of form.

Human Right
The term "human right" which does not mean any right is used
in a special sense. Human rights are those of legal and moral rights
which can be claimed by any person for the very reason that he is a
human being. These rights come with birth and are applicable to all
people throughout the world irrespective of their race, colour, sex,
language or political or other opinion. These are, therefore, those
rights that are inherent in human person and without which they
cannot live as human beings.' Jaques Maritain says, "The human
person possesses rights because of the very fact that it is a person, a
whole, a master of itself and its acts and which consequently is not
merely a means to an end but an end which must be treated as such
these are things which are owed to man because of the very
fact that he is man. 112 It is also pertinent here to mention the
comment of Sridath Ramphal as to human rights - "They have their

Ban, Dr. M. Ershadui, Ibid. P. IT

2 Quoted by I iamid. 1)r. Kaj Aktcr. Human Rights. SeIf-deierminazion and the Right to
Resistence. (Dhaka I3huiyan Academy. 1994).P.25
94 lundamciita! Rights under the Constitution

origin in the fact of the human condition, and because the have,
they are fundamental and inalienable. More specifically, they were
horn not of man but with man.'

Human rights, therefore, have two inherent characteristics-

universal inherence and inalienabilit y. 1 hcsc two characteristics
distinguish the concept of human right from other right. Universal
inherence means that these rights are universally inherent in all
human beings and anyone can claim these rights after his birth.
Inalienability as an essential 1aturc of human rights means that
these rights cannot be taken away they cannot be the object of sale
or purchase or an y kind of iransfur, In this sense human rights are
different from citizens' rights 2 which are protected by the positive
law of the state and the state can any time take away or abolish any
citizens right. But human rights are rights that existed before the
slate cain'.o being and for this they are natural and inalienable
rights.

It is noteworthy that if 'inalienability' is considered as an

essential element of human rights, there is a danger and confusion.
Because a perusal of all human rights will give the idea that this
element does not apply to all human rights. For example, right to
property which is recognised in Article 17 of both the French
Declaration on Rights of Man and Citizen, 1789 and the Universal
Declaration of Human Rights. 1948. But this right is undoubtedly
an alienable right. Only one common characteristic, can, therefore,
be found for human rights and that is 'universal inherence'. It is
rather better to divide all human rights into two categories-
fundamental or basic human rights like right to life, food. shelter,
basic necessaries of IitC, speech etc. and other human rights.'

It is also important to indicate here that what has been told here
so far about human rights is the only theoretical side of human right

Quoted by Hamid. Dr. Kaji Akter, Ihd. P. 28

Citizens rights means those rights which are not included in human rights. For
example. right to conduct business.to hinn a company, to insure etc. are citizens right
but not human rights.
Sec-for details. see. Vasak. Karel. Pic /n,eruc,fioizaf i)e,,iensian on Ilitniaji Rights-
Vol i. P.41-59
Constitution. Constitutional Law and Politics 95

while the real picture is quite different. Because everywhere human

rights are being violated; there are some human rights which can he
taken away by the state, e.g. right to nationality, right to property
etc. The truth is that the concept of human right is not at all a legal
concept; it is purely a matter of international law. If a particular
human right is recognised by a positive law of a state and is
maintained throu gh enforcement machiner y only then it becomes
legal and enforceable right. It is, therefore, better to describe human
rights as universal moral rights.

(The concept of human rights has got its formal and

categorical shape from the Universal Declaration oil luman Rights
adopted by the UNO in 1948 where 25 human rights have got their
place. These 25 rights are mostly referred to as human rights. Of
these 25 rights 19 are civil and political rights and 6 are economic,
social and cultural rights.
Fundamental Right
fhe term fundamental right is a technical one, for when certain
human rights are written down in a Constitution and are protected
by constitutional gurantees they are called fundamental rights. The
are called fundamental rights in the sense !at they are placed in the
supreme or fundamental law of the land/which has a supreme
sanctity over all other law of the land.

Following the footsteps of the French Declaration of Rights of

Man and Citizen, 1 789 and the American Declaration of
Independence. 1776 and then the incorporation of a Bill of Right in
the US Constitution in 1791 most of the democratic countries with
written constitution are including a chapter for Bill of Rights or
Fundamental Rights with special sanctity. Why is such a trend
being followed invariably in written constitutions?

The object of enumeration of fundamental rights in a

constitution is not to make them unalterable in any way but main
object is that they can not he taken away by ordinar y process of law
making. They are placed beyond the reach of the executive and the
legislative to act in violation of them. The object of the
96 Fundamental Rights under the Constitution

incorporation of fundamental rights in the US Constitution was

pointed out by Justice Jackson-
'The very purpose of a Bill of Rights is to withdraw certain
subjects from the vicissitudes of political controversy; to place them
beyond the reach of majorities and officials and to establish them as
legal principles to be applied by the courts. One's .......fundamental
rights may not be submitted to vote, they depend on the outcome of
no elections."1

In Jibendra Kishor V . The Province of East Pakistan the

Supreme Court of Pakistan held-
'The very conception of a fundamental right is that it being a
right guaranteed by the Constitution cannot be taken away by the
law, and it is not only technically inartistic but a fraud on the citizens
for the makers of a Constitution to say that a right is fundamental but
that it may be taken away by the law.12

The same view was reaffirmed by the Pakistan Supreme court

in State V . Dosso. 3 The Indian Supreme Court in Golak Nath V .
Slate of Punjab ' held-
"The declaration of the fundamental rights of the citizens are
inalienable rights of the people ......The Constitution enables an
individual to oppose successfully the whole community and the state
to claim his right."

Rights and freedoms form the bedrock of democracy. No

democracy can function successfully in the absence of some basic
freedoms. Again, modern democratic government is a party
government. The party winning majority in the election form the
government. But coaling into power the government may turn itself
into a dictatorial one violating the basic rights of people and
oppressing the opposition. The aim of having a declaration of
fundamental rights in the Constitution is to prevent such a possible
danger. In other words, they provide a restraint on the power of the
government so that it cannot interfere with the peoples' basic rights

in West Virginia Slate Ik,ard oJ'Educniion V. Barnette 319 US 638

Quoted from: Pirjada. Shari fuddin. Ibid. P.4
2 PLD 1957 Sc (PAK) 9.
PLO 1958 sc (PAK) 533
4 AIR I967SC 1643
Constitution, Constitutional Law and Politics 97

according to its whims. When rights and freedoms are placed in the
Constitution they become the part of the supreme law and the
government cannot take them away except by constitution
amending process which is always a rigid one. This is why
insertion of a Bill of Rights in a written Constitution is considered
to be one of the safeguards of democracy.

It is important to mention here that in Britain there is no Bill of

Rights; no formal declaration of any fundamental right has ever
been made. It does not, of course, mean that the rights of the people
are less guaranteed in Britain. What are fundamental rights under
written constitution are all ordinary rights in Britain. There the
protection of rights and freedoms rests not on constitutional
guarantees but on supremacy of law, i.e. the rule of law, public
opinion and strong common law traditions. Though the British
parliament, under the doctrine of parliamentary supremacy, can any
time abridge, modify or abolish any right of the people, it is the
deep-rooted democratic traditions and vigilant public opinion which
act as a constant check on the parliament to do that and the power
of the executive is limited in the sense that it cannot interfere with
the rights of the people without the sanction of law and it is, under
the doctrine of rule of law, answerable to the courts for any action
which is contrary to the law of the land. But these conditions do
not prevail in other countries which are composed of diverse
elements, having no deep-rooted traditions of individual liberty.
Secondly, almost all the modern countries emerging from the
bondage of colonialism had a painful experience of denial of
people's right. They, therefore, felt that mere custom or tradition
alone cannot provide to some basic rights the same protection as
their importance deserves. "The unique English tradition", as Bowic
says, "is not simply exportable and other nations have generally felt
that their governments need the constant reminder which a bill of
rights provides, while their people need the reassurance which it
can supply")
Instances of written constitution having no fundamental right can be cited
For example. Australian Constitution is silent about the fundamental rights. The
reason may be a historical one. Because the earliest settlers in Australia carried
their law with them from England and there the system is fully controlled by

1 Quoted by Jam. M.P. Thid, P. 459

7
98 Fundamental Rights under the Constitution

British tradition. "11w /ramers, as Kerr sais, 'of the Constitution pref erred to
i'elv on the iiIiurii/e,1 traditional bulwark o/ liberty" 2 Likeiiise. the Canadian
Constitution initial/5 did not contain a Bill of Rights. Then the ('(mac/ia,,
parliament enacted a fair in 1960 la'ing c/miii some basic rig/its. But being on/i
a Ian mode hr par/iamen!, it did not Constitute (117. 11 restriction on parliament
1
itself Lastly a Charter c Rights ii'as fom'mna//v incom'poraied in the Constitution
hr an amendment in / 982.

Distinction between Human Rights and

r Fundamental Rights
Firstly, all fundamental rights are human rights but all human
rights are not fundamental rights. Fundamental rights are those of
human rights which are placed in a written constitution. 1-luinan
rights.' therefore, are the whole of which fundamental rights are a
part. 4(
Secondly, the source of a fundamental right is the Constitution
whereas the source of human rights is the international law.
Thirdly. fundamental rights have territorial limitations i.e. they
have no application as fundamental rights outside the territory of a
particular state. But human rights have no territorial limitations
they have universal application.
Fourthly, fundamental rights are protected by constitutional
guarantees and can he cii forced through the state courts. But there is
no effective enforcement machinery for human rights.
Fifthl y. fundamental rights are largely applicable to the citizens
While human rights are universally applicable to all human being///'

Enforcement of Fundamental Rights

The insertion of fundamental rights in a constitution becomes
meaningless if it is not provided by the Constitution for easy and
effective procedure for their enforcement. And this easy and
effective enforcement should be available not only against the
executive but also against the legislative. If the executive does
an ything in violation of fundamental rights, the citizens must have a

- keer. t)qpald. MM. The 1,011, of the Australia,, Constitution, (The Law Book
('onmpaimyf Australia lid. 1925). P.218
Jam. M. P: Ibid. I'. 459
Constitution, Constitutional Law and Politics 99

remedy. Similarly if the legislature enacts any law which is

inconsistent with any of the fundamental rights, there must he
procedure to declare that law unconstitutional. The idea of
protection of fundamental rights can he best understood from the
American Declaration of Independence, 17 ' 76 where it is stated-
"That all men are created equal, thatthey are endowed by their
creator with certain inalienable rights; that among these are life,
liberty and pursuit of happiness
that to secure these rights governments are instituted among men
deriving their just powers from the consent of the governed;
that whenever any form of government becomes destructive of
these ends, it is the right of the people to alter or abolish it and to
institute a new one."

The Declaration, therefore, has laid the utmost emphasis on the

enforcement of rights that if the peoples' rights for the protection of
which the government is formed, cannot be enforced then the
government would be useless. The importance of remedies to
enforce fundamental rights has also got recognition in article 8 of
the Universal Declaration of Human Rights, 1948 which states-
"Everyone has the right to an effective remedy by the competent
national tribunal for acts violating the fundamental rights granted him
by the constitution or by law."

To this respect the Pakistan Supreme Court in Moudoodi V .

Government held-
'The basic principle underlying a declaration of Fundamental
Rights in a Constitution is that it must he capable of being enforced
not only against the executive but also against the legislature by
judicial process."'

Constitutional Guarantees or Remedies

Though it is a claim of a written constitution embodying
fundamental rights that effective constitutional remedies for the
enforcement of fundamental rights should be provided for by the

PU) 1964 SC 673 Quoted by. Pirzada. Ibid, P. 58

100 Fundamental Rights under the Constitution

Constitution itself, practical experience teaches us that some of the

written constitutions do not specifically provide for the remedies in
the Constitution. The US and the French Constitutions are two of
them. But most of the written constitutions provide for the right to
constitutional remedies in case of violation of fundamental rights.
This right to constitutional remedy has two dimensions- judicial
review and judicial enforcement.' Judicial review in relation to
fundamental rights is provided for with a view to enforcing
fundamental rights against the legislature. In other words, if the
legislature passes any law which is inconsistent with the
fundamental rights, the highest seat of the judiciary must have the
jurisdiction to declare that law unconstitutional. The Supreme Court
of Banglade;h can exercise this jurisdiction under Articles 26 and
102 of the Constitution. 2 Judicial enforcement, on the other hand, is
provided for with a view to enforcing fundamental rights against
the executive. In other words, if any public authority violates any of
the fundamental rights enumerated in the Constitution, the right to
move the highest court of the land for enforcing that right must be
specifically guaranteed in the Constitution and it should be
guaranteed as of an independent fundamental right. This right is
guaranteed in article 44 and the High court Division of the Supreme
Court is empowered to enforce fundamental rights under Article
102 of the Bangladesh constitution.

As mentioned earlier, the US Constitution incorporating a Bill

of Rights does not specifically provide for constitutional remedies
for the enforcement of fundamental rights. In other words, no right
has been created, as has been in the Constitution of Bangladesh,
India, Pakistan etc., in the US Constitution in favour of citizens to
move the Supreme Court for the enforcement of any of the Bill of
Rights. The direct enforcement procedure of fundamental rights in
USA is dealt with the Judiciary Act of 1789 and the US Supreme
Court hears the fundamental rights cases only in its appellate
jurisdiction. 3 In France the position is also a narrower one. The
French Constitution provides neither any right to constitutional

See, also PP. 61-72

2 See also PP. 72-73
See Abraham, Henry J. The Judiciary, (A llyn & Bacon. Inc ) 5th ed, P. 259
Constitution, Constitutional Law and Politics 101

remedies nor is any court in France empowered to declare a law

which is inconsistent with fundamental rights unconstitutional.'

Fundamental Rights in the Constitution of Bangladesh

18 fundamental rights have been enumerated in the Constitution
commencing from Article 27 to 44. All of these rights are civil and
political rights. These 18 fundamental rights may be firstly divided
into two groups:
a. Rights granted to all persons- citizens and non-citizens
alike. These are six rights enumerated in Articles 32, 33, 34, 35, 41
and 44 of the Constitution.
b. Rights granted to citizens of Bangladesh only. These are
12 rights enumerated in Articles 27, 28, 29, 30, 31, 36, 37, 38, 39,
40,42 and 43.
Imposition of Restriction over
Fundamental Rights
The enjoyment of rights can nowhere be seen in an absolute
position, for the enjoyment of one's right in the society is subject to
the enjoyment of others' right. Moreover, modern states are welfare
states where collective interests are given priority over individual's
rights or interests. Unrestricted individual liberty becomes a licence
and jeopardises the liberty of others. "Civil liberties as guaranteed
by the Constitution imply the existence of an organised society
maintaining public order without which liberty itsell would be lost
in the excess of unrestrained abuses". 2 if individuals are allowed to
have absolute freedom of speech and action, the result would be
chaos, ruin and anarchy. On the other hand, if state has absolute
power to determine the extent of personal liberty, the result would
be tyranny. So restrictions may be imposed on the enjoyment of
fundamental rights for the greater purpose of public welfare. This
idea has got recognition in article 29(2) of the Universal
Declaration of Human Rights, 1948-
"In the exercise of his rights and freedoms, everyone shall be
subject only to such limitations as are determined by law solely for
the purpose of securing due recognition and respect for the rights and

freedoms of others and of meeting the jLlst requirements of morality.

public order and the general welfare in a democratic society'.

It is also worthy here to mention the judgment ol' Justice

Mukharjce in Gopa/an V . State of Madras -
"]'here cannot he any such tiling as absolute or uncontrolled
liberty wholly free froni restraint; for that wouid lead to anarchy and
disorder. The possession and enjoyment of all rights ......are subject
to such reasonable conditions as may be deemed by the governing
authority of the country essential to the safety, health, peace, general
order and morals of the community."
Keeping in line with this idea restriction has been imposed on
some fundamental rights under the Bangladesh constitution. On the
basis of this restriction all fundamental rights enumerated in the
Bangladesh Constitution may be classified into following three

A. Absolute Rights:
Some rights have been kept in an unfettered form in the sense
that parliament cannot, except as provided in the Constitution,
impose any restriction over them. They are following:
I. Equality before law (Art. 27)
2. Discrimination on grounds of religion etc. (Art. 28)
3. Equality of opportunity in public employment (Art. 29)
4. Prohibition of foreign titles etc. (Art. 30)
5. Safeguards as to arrest and detention (Art. 33)
6. Prohibition of forced labour (Art. 34)
7. Protection in respect of trial and punishment (Art. 35)
8. Enforcement of fundamental rights (Art. 44).

AIR 1950 SC 27
2 this grouping has been done according to the judgment ni the Supreme Court of
Pakistan in A bu ,j'/a ,1!auc/oodi V . Goi'e,'n,nen, of IJtvt Pakistan. quoted by Pir,ac.
Sliairtiiddin, Ibid, P. 101
Constitution, Constitutional Law and Politics 103

B. Rights on which reasonable restriction can be imposed:

They are following:
- Freedom of movement (Art. 36)
2. Freedom of Assembly (Art. 37)
3. Freedom of Association (Art. 38)
4. Freedom of thought and conscience and ol'speech (Art. 39)
5. Freedom of religion (Art. 40)
6. Protection of home and correspondence (Art. 43)
The grounds for imposing restriction on these rights have been
laid down by the respective sections-
1 . in the public interest (Art. 36)
2. in the interest of public order or public health (Art. 37)
3. in the interest olpublic order or morality (Art. 38)
4. in the interest of the security of the state, friendly relation
with foreign state, public order, decency or morality or in
relation to contempt of court. defamation or incitement to an
offence (Art. 39)
5. in the interest of the public order and morality (Art. 41)
6. in the interest of the security of the state, public order.
public morality or public health. (Art. 43).

In the case of above mentioned fundamental rights parliament

can by law impose only reasonable restriction as mentioned in the
respective articles. The reasonability of the law can be examined by
the Supreme Court and if the restriction seems to be unreasonable
the court can declare the law illegal. It was held in Chiniamoni Rao
V. State of Mad/i i Pradeh' -
"Legislation which arbitrarily invades the right cannot he said to
contain the quality of reasonableness ......The determination by the
legislature of what constitute a reasonable restriction is not final or
conclusive; it is subject to supervision of courts."
A perusal of the nature of restriction over the above mentioned
fundamental rights also reveals the idea that the Constitution of
Bangladesh has struck a balance between the guarantee of

AIR 1951 SC ll
104 Fundamental Rights under the Constitution

individual's rights and the collective interests of the community.

Because as mentioned above, the concept of public interest,
morality, public order, security of the state, public health etc. all are
collective interests. The maintenance of social order and peace
depends principally on safe enjoyment of these collective interests
which would remain unprotected leading to a realm of anarchy had
there been no provision to impose reasonable restriction on
individual's liberty.

C. Fundamental rights which have been practically left to the

legislature:
There are some rights on which parliament can by law impose
any restriction it pleases. They are following:
I. Right to protection of law (Art 3 1)
2. Protection of right to life and personal liberty (Art. 32)
3. Right to lawful profession, occupation or business (Art. 40)
4. Protection of property right (Art.42)
It has been detailed in the Constitution that the enjoyment of
these rights shall be 'in accordance with law'. 'except in accordance
with law'. 'subject to any restriction imposed by law', etc. Therefore
the parliament can impose any restriction over these four rights.
And the court cannot examine the reasonability of the restriction; it
can see only the following two things:
i) if the law imposing restriction is a valid one;
ii) if the right has been infringed or abrid ged in accordance
with the law.
For example, it was the law that a person could not possess
More than 300 bighas of land. Then a change was made in the law
that one could not possess more than 100 bighas of land and the
present law provides that one cannot possess more than 60 bighas
of land. Even in near future parliament may make law that one will
possess not more than 30 bighas. If the penalty for a particular
offence is life imprisonment, the parliament can, by law, substitute
it for death sentence, and the court cannot declare the law illegal
howsoever unreasonable it is.

Suspension of Fundamental Rights during Emergency

For this topic please see chapter XV
Constitution, Constitutional Law and Politics 105

CHAPTER VII

AMENDMENTS OF THE CONSTITUTION OF

BANGLADESH

So far there has been 14 amendments to the Conlitution of

Bangladesh. Detail discussion will follow here a summery of all the
amendments.

Summery of 14 Amendments
1 mendments Date Sunz,neri' of Substance

1st 151h.luly. 1973 To make way for prosecution of

Amendment genocide, crime against
humanity and war crimes
committed in the liberation war
of' 1971

2nd 22nd September. Inciusion ofcmcrgcncv

Amendment 1973 provision, suspension 01'
iijndamcntal ri g hts and
preventive detention.

3rd 28th November To give effect to the boundary—

Amendment 1974 line treaty between Bangladesh
and India.

4th Amendment 25th January One party dictatorial system was

1975 substituted for a responsible
parliamentary system.

5th Amendment 6th April. 1979 l.egalising all acts done by the
first Military Authority
106 Aiiiendincrits of the Constitution of Bangladesh

(oh Amendment 10111 Jut'. lOX I 1o make wa For thc Vice-

President to he a candidate in
president election.

7th Amendment I 0th No ember. Iccalisine all acts done by the

1986 2nd \Iilitarv Authorits

801 .\iiiendnent 9111 June. 1 SCItillLl up six permanent

Oenches oF the II igh Court
I )i ision and making 'Islam' the
state eli on.

,)(]I Amendment I I iii .11989

at . I ) i rect elect on ol the President
and the Vice- President
simultaneousl

1 ()th 23rd lane. 1990 Period For reser\atiuii o130

A nie iLl men t somcn members seats in the
parliament was extended For I))
sears.

11th 10th August. .ei.ml sine the appointment of

/\ nicnd nien t IQ9I ShahahuMin Ahmed. ChieF
justice 01 Ihineladesli. as Vice
President u) I aniz!adesIi and his
Al aetik ities as the Acting
President and then the return to
his pres ious position () I the
( Ide) .Justiee OF 13 all 10

]2)111 I 5th September. Rci ntrod uci no the parl i anientar)

•\ nici id iiie lit 1991 s stem.

3 Ii 28th \Iareli. 1996 Pros ision Ijir Caretaker

Amendment ( im em men t.

I •tili I 0th sIa - 2014 1< c-introducing reserved seats

A men dii icn t 6 r u omen in Parliament
Constitution. Constitutional Law and Politics 107

FIRST AMENDMENT
This amendment was made to face a special situation. There was no
special law in the country to prosecute those ho committed war crimes.
crime against humanity. genocide and other crimes under international
law, during the liberation war in 1971. Again, the provisions of
fundamental rights in the Constitution did not allow their separate ti al.
By this amendment a new clause in Article 47 was inserted (clause 3)
which allowed the parliament to make any law for the trial of "'at-
criminals. By insertin g a new Article 47A in the Constitution certain
fundamental rights were made inapplicable to those who would he tried
under that law. The rights which were made inapplicable to them were
following.
1. Right to protection of 1a" , (Art. 3 1
2. Protection against trial under C.v/?ucI flctH t law lArt .35(l)]
3. Right to a speed y and Public trial by an independent and
I
impartial tribunal Art. 35(3)1
4. Right to en force fandamentat rights (Art. 44)
It is worthy to mention here that under the authority of this
amendment the parliament passed within a week the International
Criminal (Tribunal ' ) Act for the trial of 195 prisoners of ars. But all
initiative of the goernment to try them ended in a fail are due to tricks
played b y 1311utto.2

SECOND AMENDMENT
Background
The original Constitution of Bangladesh had two most significant
negatic latures-- -first, the absence of provisions br prevent ftC
detention and second, absence of provisions for emergenc y and
Suspension of fundamental rights. During the British colonial rule and

/.v/n).vI focio I a\v: The lzitin c e.post facto ine.uis alter the Oict. Lpo.ci ficio
Lm iezins a i aw that provides punishment tir all that as not I lega lien the act
vas committed. Ivcrv cvposi facto Ia\\ is necessarily retrospective. Blacks !
I )jct on.j,v defines e.po.v/ facto lav as it law passed aller the concurrence of a lhct or
commission of an act which retrospectivek changes the legal consequences or
relations otsucli flict or deed.
See. Atoned, Moudud. llooc/uc/esIi ha o1_5i'ejtJi t//ihr kah,nan. Ibid. I. 206
108 Amendments of the Constitution of Bangladesh

then 23 years constitutional history of Pakistan the arbitrary application

of preventive detention law and emergency was so bitter that it left a
good teaching to the AL that such provisions which are contradictory to
the concept of nourishing living democracy, would never allow to build
normal democratic system. To maintain the colonial state the British
government used these laws under the Government of India Act, 1935 as
necessary weapons to crash the opposition and perpetuate their rule. And
hundreds and thousands of Indians and their leaders had to suffer
imprisonment without trial for an indefinite period. After partition the
two Governor-Generals of Pakistan Golam Mohammad and Iskander
Mirza used the power of emergency to perpetuate their rule and thereby
destroyed all the political institutions. The emergency imposed by Ayub
Khan in 1965 was not lifted till 1969 when he was forced to leave power.
During this continued emergency opposition was suppressed and
hundreds of citizens were put into prison for years together without trial.
This bitter experience led the AL to make an avowed commitment since
the formation of United Front in 1954 to repeal not only these black laws
but also to remove any scope or prerogative enabling an individual to
retard the process of democracy.' With this experience and commitment
in mind, the AL government in Bangladesh did not want to leave any
scope for such exercise of power by the president. As a result, in the
original Constitution of Bangladesh neither provision of emergency nor
any of for preventive detention was inserted. The decision was
praiseworthy and conducive to the nourishment of living democracy. But
sooner than 9 months had passed provisions for emergency and
preventive detention were inserted in the Constitution by the 2nd
Amendment to the Constitution.

Subject matter of the Amendment

Four types of fundamental changes were introduced in the
constitution by this amendment. They are following:
I. A new part IXA was added to incorporate emergency provisions.
(please see chapter XV)

Ahmed Moudtid. Bangladesh: Era of Sheikh tfujibur Rahinan, Ibid. I'. 102
Constitution, Constitutional Law and Politics 109

2. Article 33 was substituted so as to empower the parliament to pass

law relating to preventive detention (see, details, chapter XVI)
3. Provision for enacting laws inconsistent with fundamental rights
were incorporated by adding two new clauses—clause 3 of Article 26
and clause 3 of Article 142. This was not any illogical or undemocratic
something, for the government was not given any power, without
amending the constitution itself, to enact any law inconsistent with
fundamental rights. Article 26(2) of the original constitution reads:
"The state shall not make any law inconsistent with any provisions of
this part (i.e. "Fundamental Rights part) and any law so made shall, to the
extent of such inconsistency, be void.

Though the usual interpretation of the term 'law' used in this Article
means a positive law passed by the parliament in its ordinary legislative
process and not necessarily an amendment Act in its constituent
amending power, an apprehension arose that the court might declare even
an amendment Act purporting to amend the provisions of fundamental
rights illegal. The reason behind such an advance apprehension was the
controversial judgment of the Indian Supreme Court in Golaknath's
case) It was decided in this case that the term 'law' in Article 13(2) of
Indian Constitution corresponding to Article 26(2) of the Bangladesh
Constitution includes amendments to the Constitution and consequently,
if an amendment Act abridges or takes away a fundamental right the
amending Act itself would be void. This amendment gave rise to an acute
controversy. It was apprehended that the fundamental rights in the
Constitution would become static creating hindrances in the way of
enactment of socio-economic legislation required to meet the needs of a
developing society. To get over this problem created by Golaknath case
the Indian parliament passed the Constitution (24th) Amendment Act,
1971 which laid down that parliament might in the exercise of its
constituent power amend any provision of the constitution, be it of
fundamental rights or of any other one. To avoid such a possible situation
the Constitution of Bangladesh was amended in advance. A new clause
(clause 2) was added in Article 26 which reads:
"Nothing in this article shall apply to any amendment of this
Constitution made under article 142.

Golak Natli V. State of Punjab. AIR 1967 Sc 1643

110 Amendments of the Constitution of Bangladesh

To remove all doubts a dooDle check was provided by inserting

another clause (clause 2) in article 142 which reads:
"Nothinu in Article 26 shall apply to any amendment made under this
Article."

4. The intcval between two sessions of the parliament was extended

from 60 days to 120 days. This change virtually weakened the spirit of
responsible government. Because to extend the period between two
SCSSIOflS of parliament is to keep the parliament in abeyance for a longer
period, in other words, to get the government out of its responsibility in
the parliament. Secondly, so long the parliament will not be in session the
government will get an easy hand to promulgate ordinances by-passing
the parliament.' Thus what was done by extending the period between
two sessions was to give government an easy way to be dictatorial.

This second amendment was the first destructive blow on a

democratic constitution. It was an irony of fate for Bangladesh that the
party which led an indomitable movement for 23 years against all black
laws and oppression there under has now, only to consolidate their
power. proceeded for more harsh iaws and political repression sacrificing
the lofty idealism embodied in the Constitution by this very party. As a
commentator says-
"in order to consolidate their political position I other the high degree of
idealism embodied in the 1972 Constitution was at last sacrificed . ..... With such
a meagre number of members in opposition the Amendment Bill was passed
within a short time without much debate. The oppositions proposal including
that of Mr. Ataur Rahman Khan to refer the Bill to elecit public opinion was
rejected. The new law Minister Monoranjan Dhar. however. attempted to make
out a case arguing that these provisions for preventive detention and proclamation
of emeruencv were in the constitutions of all democratic countries of the world
and they were being kept to meet the emergency situation of the country. I-Ic
argued that these pro isions were 001 incorporated in the Constitution when it
was framed and that tiow this amendment was introduced to till up that
omission -

See Further at P. I I 5
Atoned. M nidud. f?oiiglm/e.v/z /i /S/z'jk/i Alt//bur Rn/w,0o. Ibid. P. 1 49
Constitution, Constitutional Law and Politics I!I

When preventive detention and emergency provisions were inserted.' as

Badrut [[aider Chowdhur . CJ. sa•s. "in the constitution, to put it simply vhai
was given by one hand was taken away by the other."

THIRD AMENDMENT
Like the first one the third amendment was made to face a practical
situation. It made changes in Article 2 of the Constitution and gave effect
to an agreement between Bangladesh and India relating to some changes
in boundary lines between these two countries.

FOURTH AMENDMENT
Of all the amendments made so far the 4th Amendment has been the
most debatable one. This amendment has played the most devastating
role in the development of Constitutionalism in Bangladesh. It altered
and virtually destroyed the basic and essential features of the
Constitution.
Background
After the national independence the people of Bangladesh were
presented a well-written and much improved constitution over all the
existing constitutions of the sub-continent. The Constitution, to a large
extent, reflected the aspirations of the people nurtured for nearly two
decades. But only after 3 years of its life the same AL government which
had adopted it transformed it. by the 4th Amendment, beyond any
resemblance with the original. It virtually turned the Constitution, a best
one, into the worst one in the world.

On 28th December, 1974 emergenc y was declared throughout the

country suspending fundamental rights guaranteed in the Constitution.
While justifying such an action it was mentioned in the government
handout that a group of people who were opposed to the independence
and emergence of' Bangladesh as a sovereign state were active in various
subversive activities and they were joined by others who failed to attain
power through constitutional means. It also disclosed that some
collaborators were subverting the state and were engaged in activities

Chowdhury. Balm[ I laider. Lto/,,uoo of 11w Supreme ('ouri of flangl@ de.rh. (Dhaka
tJni ersit . [990). P. 79
112 Amendments of the Constitution of Bangladesh

which were creating impossible conditions in the country for attaining

normal political stability and orderly economic progress. Though the
emergency was proclaimed with a view to bringing the deteriorated
economic situation under control by arresting and punishing the hoarders,
black marketers, smugglers, armed bandits etc., it was not the real reason
behind. The main aspect of it was to create conditions which would be
congenial for a smooth ushering of a stem which Mujib by that time had
already decided to introduce one party dictatorial system in the
Constitution. Accordingly, on 25th January, 1975 only 27 days after the
emergency was proclaimed the country went through the most significant
and radical changes in the Constitution.' The infamous Fourth
Amendment Bill to the Constitution was introduced in the parliament and
the parliament passed the Bill into an Act at a speed unprecedented in the
history of law making. Within half-an hour the crucial Bill which was of
the greatest importance, was passed through and no discussion or debate
was allowed. 2 "The way the Bill was adopted demonstrated the
omnipotence of Sheikh Mujib's leadership. A constitutional dictatorship
was established which formally buried parliamentary democracy and the
growth of constitutionalism in Bangladesh" .3

Ahmed. Moudud, l3ang!adevh : Era of Sheikh Mujibur Rahinan, [bid, P. 233

Soon after the BIi was passed through, Mujib took the oath of office in the parliament
administered by the Speaker ousting the quiet and placid Mahmudullah from the office
of the President even without giving him an opportunity to resign. it had been the
tradition in the sub-continent that the oath of office of President was to be
administered by the Chief Justice of the country. In the Fourth Amendment this was
changed and was substituted to be done by the Speaker. It was alleged that this was
done for sheer convenience. Arrangement was made in such a way so that the
fundamental change that was brought through by the 4th Amendment could be given
effect to almost on the spot and there was no scope for raising any legal dispute over
the whole change. Mujib, therefore, introduced the Bill on Saturday, the day the
Supreme Court does not sit. The unusual way of passing the law without any debate or
discussion also suggested that Mujib did not want to leave any scope to block the
change. The Chief Justice was perhaps not trusted anymore to administer the oath.
Otherwise, there could be hardly any reason to change this provision. The Speaker, a
party member was readily available to administer the oath of office to the President in
the premises of the parliament soon after the law was passed. (Ahmed, Moudud, Ibid,
pp. 235, 241 & 260)
Choudhury, t)ilara. fbid. P. 45
Constitution, Constitutional Law and Politics 113

Subject matter of the Amendment

The major changes introduced by the Amendment have been
discussed below along with their effects and consequences over
constitutionalism in Bangladesh-
1. In place of parliamentary system the so-called presidential
system was introduced.
The parliamentary form of government has grown and developed in
Britain and new countries of the world are taking this system as a model
of direct responsible government. The presidential system of government,
on the other hand, has grown and developed in USA. Both the systems
are ideal democratic systems. So a change from parliamentary to
presidential system does not necessarily mean that there can be no
democracy. But to make the presidential system truly a democratic one
some intrinsic features of it must be adopted which the 4th Amendment
lacked.

Firstly, an essential element of the presidential system is the principle

of separation of powers. And that separation of powers must be a
balanced separation as opposed to absolute separation of powers. To
maintain the separation of power as a balanced one there must be the
principle of checks and balances which prevent any organ of the
government form becoming arbitrary and dictatorial. But the presidential
system as introduced by the 4th Amendment was adopted without any of
these two important principles. In true presidential system, as there is the
doctrine of separation of power, no minister can be a member of
parliament. But in the 4th Amendment it was provided that the President
could appoint Ministers from among the members of the parliament or
from outside [Art. 58(3)]. There was left, therefore, no separation of
power.

Secondly, under the Amendment, the President was to be elected by

the people in a direct election (Art. 48). So the new President under the
amended system was to face and be elected in a direct election. But by
inserting a special provision in the 4th Schedule Sheikh.Mujib was made
President by operation of law. As the provision goes:
(b) Bangabandhu Sheikh Mujibur Rahman, Father of the Nation, shall
become, and enter upon the office of the President of Bangladesh and shall,

L]
114 Amendments of the Constitution of Bangladesh

as from such commencement hold office as President of Bangladesh as if

elected to that office under the Constitution as amended by this Act'
Mujib, therefore, became an instrumental President as opposed to
peoples' President through election, for it was the 4th Amendment, an
instrument, which made him President.

Thirdly, as the whole system was changed it was essential to hold a

new ceneral election. But like the life of the President the life of the
pariianent was also given an auto-extension by operation of law. A
special provision was made in the 4th Schedule which read:
"Notwithstanding anything contained in the Constitution, the parliament
functioning immediately before the commencement of this Act shall, unless
sooner dissolved by the President, stand dissolved on the expiration of the
period of five years from such commencement."

Thus completely in an extra-constitutional way the lives of both the

President and parliament were extended. These two incidents may be
termed as a silent coup d' eIat 1 in the constitutional history of
Bangladesh.

Fourthly, the earlier provision was that no person could hold the
office of the President for more than two terms. Likewise in US
presidential system no person can be President for more than two terms.
But under the 4th Amendment no such restriction was mentioned

Coup d' etat It means a sudden change in the government by force or by any illegal
or extra-constitutional way brought about by those who are in governmental power or
in military power. Distinction between coup and revolution was recognised. But the
Pakistan Supreme Court in Stoic V. Dosso (1958) held that there was no distinction
between coup and revolution. Both the terms are, therefore, synonymous. Distinction,
of caurse, remains between coup or revolution and mass-upsurge. Mass-upsurge
involves the participation of the masses while a coup is effected from above i.e. it is
effected by a group of elite in a conspirating way where the masses do not have any
participation. Examples of coups are the seizures of power by Napolean Ill in 1851. by
Mussolini in 1925, by a group of army officers in 1975 in Bangladesh killing the then
President Sheik Mujib etc. The whole 4th Amendment may be termed as a silent coup,
for the government elite uprooted the whole governmental system and introduced
completely a new one. All this was done within half-an hour, in a dramatic hasty way
without allowing any debate. On the other hand, the fall of Ershads autocratic regime
through the mass-revoloiition in Bangladesh in 1990, take over by the labour party in
Russia in 1917— are the examples of mass-upsurge.
Constitution, Constitutional Law and Politics 115

meaning that under the new system the president could hold the office of
the president for an unlimited number of terms.

2. The 4th Amendment made the impeachment and removal of

the President unprecedentedly difficult.
With regard to the impeachment and removal of the President on the
ground of physical or mental incapacity the number of votes required in
both the cases of initiation of motion and passing the resolution was
raised, under the 4th Amendment, to two-thirds and three-fourths
respectively which were previously done by a simple majority and two-
thirds (Art. 53 & 54). So the President was placed above the supreme law
of the land, for the amendment of the constitution needed two-thirds
majority whereas the President's impeachment or removal needed three-
fourths majority. Actually the provisions were made to leave no scope for
impeachment or removal of the President.

To be mentioned here that such a stringent procedure for the

impeachment was introduced in Pakistan Constitution of 1962 made by
Ayub Khan. There the provision was that to impeach the President a
resolution was to be moved by written notice of not less than one-third of
total members and to be passed by not less than three-fourths majority. It
was also provided that if less than one-half of the total members of the
National Assembly voted in support of the resolution all the members
giving notice of the resolution should cease to be members of the
assembly. Such a stringent provision is made in a dictatorial system so
that no one dare raise any voice to remove or impeach the President.
Though the impeachment procedure in Ayub Khan's Constitution was a
stringent one, there was no one party system; it was a multi-party system.
But the interesting point here is that the 4th Amendment introduced one
party and the President was to be the leader of that one party. There was
no opposition who would try to impeach the President. So it seems that
President Sheikh Mujibur Rahman had no confidence even in his own
party men. Such a stringent procedure for impeachment particularly in
one party system can nowhere in the world be seen.

It is also worth mentioning here that to impeach the President under

the US Constitution a resolution thereto must be moved in the House of
Representatives by one or more members. If the resolution is supported
116 Amendments of the Constitution of Bangladesh

by majority members of the House, it then goes to the Senate for trial.
When the trial is held it is the Chief Justice of USA and not the regular
speaker who presides so that an impartial trial may be held. If the charge
is supported by votes of two-thirds of the members present, the president
shall vacate his office (Art. I sec. 3).
Present Position: These provisions concerning the President as
introduced by the 4th Amendment is no longer in force. The 12th
Amendment has reintroduced the provisions of the original Constitution
of 1972.

3. The 4th Amendment turned the Parliament into a powerless

secondary rubber-stamp body.
The Amendment turned the parliament into a useless forum. In the
original Constitution the legislature was given the status of supreme and
sovereign law-making body. It was the source of law and authority and
the fountain of power sanctioned by the people. In presidential system
though the President and his ministers are not responsible to the
parliament, the parliament still retains strong checks and control (under
the doctrine of checks and balances) over the cabinet through committee
functioning and particularly in law-making the parliament in every
system, be it parliamentary or Presidential one, is considered supreme
and sovereign. In every system it is a rule of law that a bill passed by
parliament cannot transform into an enforceable law unless it is assented
by the President or the head of the state. But if the president is armed
with the power to use absolute veto then a bill which is opposed by the
president cannot come into a law. And in such a situation the law-making
power virtually gets itself trapped or strangled at the hand of the
president and the parliament as a law-making body becomes meaningless;
it turns into a secondary rubber stamp body. It is for this, in democratic
countries the veto power of the President is given either in a limited form
(e.g. in USA under Art. I Sec. 7 of the US Constitution) or is abolished
(e.g. in the. UK the veto power is abolished by convention).

It was provided -in the original Constitution that the President, within
15 days after a Bill was presented to him, should assent to the Bill.
Without giving assent he could return the Bill to the parliament for its
reconsideration. If he failed to do so the Bill was deemed to have duly
Constitution, Constitutional Law and Politics 117

assented by him after the expiration of 15 days. Thus like the US

Constitution the original constitution of Bangladesh armed the president
with suspensive veto as opposed to absolute veto.
V eto : fit law 'veto' means the power of the head of the state to
prevent the enactment of or to reject a bill passed by parliament. V eto can be of
three types: (a) A bsolute Veto: (b) Suspensive or Qualified Veto; and (c) Pocket
Veto.
(a) A bsolute V eto: W hen the head of the state or President withholds his
assent to a bill and the bill can never come into a law, the President's action is
called absolute veto. In other words, if the nature of a veto is such that once it is
applied, a bill is rejected forever i.e. it cannot come into an A ct of parliament.
then the veto is called absolute veto. In the original Constitution of Bangladesh
there was no provision for absolute veto: the 41h A mendment introduced in
A rticle 80 provision for absolute veto but in 1978 by the Second Proclamation
o,-der No IV this provision was withdrawn. Now there is no provision for
absolute veto; there is however, provision for suspensive or qualified veto in
Bangladesh Constitution. In Indian Constitution there is provision (4 i/ic/c Ill)
for absolute veto but it is not used conventionally. The King or Queen in
England has the legal right to use absolute veto but that right has not been
exercised since 170 7 when Queen A nne vetoed the Scottish Militia Bill. There is
no provision for absolute veto in the US Constitution; the US President cannot
exercise absolute veto, for the use of absolute veto will on the one hand, make
the principle of checks and balances ineffective and on the other hand, make the
parliament a peoples representative body meaningless.
(b) Suspensive V eto: W hen the President withholds his assent to a bill
adopted b y the parliament and returns. the same to the parliament for its
reconsideration, the action of the President is called suspensive veto. But the
parliament can override such a suspensive veto b y mustering a simple majority
or absolute majority. A lmost all democratic countries provide for suspensive
veto, for it maintains checks and balances between the President and the
parliament. Of course, in USA the Congress can override a suspensive veto by
mustering only two-thirds majority votes in both the Senate and the House of
Representatives. Under A rticle 80 of the Bangladesh Constitution our parliament
can override a suspensive veto fry mustering an absolute majority i.e. majority
votes of the total number of members of parliament. Under the Constitution of
Bangladesh President justice Shahabuddin A hmed used this veto power for the
first time in 1999 when he returned the Civil Procedure (A mendment) Bill, 1999
for reconsideration by the parliament. However, the A L Government did not
II 8 Amendments of the Constitution of Bangladesh

reintroduce the Bill in the parliament to consider the President's message. The
reason seems to be Its inability to muster majority votes of the total UPs needed
to pass it and to resubmit it to the President for consideration.
(c) Pocket Veto: When the President does not assent to a bill; nor does he
return the bill to the House for its reconsideration; mother he holds on it; it is
called the President's power of pocket veto. The (IS President has to assent a
bill within 10 days after it is presented to him. Through his'pocket veto' the US
President can hold a hi//for 10 days. If Congress has passed a bill within last 10
days of a session, and the President dislikes it, he may exercise a 'Pocket Veto'
by holding the bill until Congress adjourns without signing or staling his
objections and on the adjournment of Congress the bill diet,. US Presidents like
Roosevelt, Truman,
u Cleveland etc. used this pocket veto sign/Icantly. In
Bangladesh Constitution the President has been given 15 days time. The
president can, therefore, hold a bill for these 15 da ys. ,lt the expily of 15 days
the hill auionzaticallv comes into a law. But if parliament is dissolved or
prorogued within this 15 da ys and the President (foes not give his assent, the bill
wi//face death under ocket veto'.

But under the 4th amendment the President could now withhold
assent to any Bill passed by the parliament. Thus the President was now
armed with absolute veto and once he vetoed a Bill that Bill could never
come out as a law. The President was, therefore, given an unfettered
legislative power; he was placed above the parliament, and as a result,
virtually 'the importance of parliament was entirely gone and it was
turned into a secondary rubber-stamp body in the new political system."

It is pertinent to mention here that even in Ayub Khan's Constitution

of 1962 there was no provision for absolute veto power. The President
could use suspensive veto only. It was provided in Article 27 that in case
the President withheld his assent from a Bill, the parliament was
empowered to reconsider the Bill and if the Bill was again passed by the
Assembly by votes of two-thirds majority, it was again presented to the
President for his assent and it was deemed to have duly assented after the
expiration of 10 days. Thus even in Ayub Khan's Constitution

Ahmed. Moudud. Bangladesh Era of Sheikh Mujibur Rahuzan, Ibid, P. 237

Constitution, Constitutional Law and Politics 119

particularly in the matter of law-making the principle of checks and

balances between the President and the parliament was maintained.

It is also noteworthy here that in the US system the President has no

power to absolute veto. He has the power to use suspensive veto in the
sense that he may, within 10 days return a Bill to the Congress for
reconsideration. And when such a Bill is reconsidered and again passed
by votes of two-thirds majority in both the Houses, it becomes
automatically a law (Art. I, Sec. 7).

Present Position: Provision relating to veto as was introduced by 4th

Amendment is not in force. The provision of absolute veto was deleted in
1978. Now the whole provision is a democratic one as was introduced in
the original Constitution of 1972.

Secondly, in the original Constitution. the interval between the two

sessions of parliament was 60 days. But the Second Amendment
extended this period to 120 days and by 4th Amendment the provision
was made that 'there shall be at least two sessions of parliament in every
year" (Art. 72). Thus the role of the parliament was reduced to a
minimum. Of course, there are countries where sessions are held only
once or twice a year. In Britain parliament session is held only once a
year; usually in November the session starts and it lasts for the whole
year except some recesses' and two weekly holidays. In India under
Article 85 of the Constitution parliament session may be held only twice
a year but usually parliament holds 3 sessions per year (Budget session,
Monsoon Session and Winter Session) and the average number of sitting
days in a session is 35•2 Thus making provision for at least two sessions a
year by the 4th Amendment was nothing undemocratic. However, the
intention behind was to keep parliament away from its functioning, for no

There are usually 5 recesses: two weeks in December/January; one week in March /
April; one week at the end of May: 10-12 weeks in August—October and a further
week or so in mid-November between the close of the old session and the opening of
the next. (based on information supplied by the House of Commons
2 Jam, C.K. The Union & Slate Legislature in India, (New Delhi : Allied Publisher Ltd.
1993) P.34
120 Amendments of the Constitution of Bangladesh

session in the first parliament in Bangladesh did last for more than 7 days
in average.
Present Position: This undemocratic provision is no longer in force.
The provision of the original Constitution has been revived.

Thirdly, under Article 70 of the original Constitution, a seat of a

member of parliament was to be vacated for two reasons - (i) if he
resigned from the party which nominated him as a candidate; or (ii) if he
voted in the parliament against that party. But the 4th Amendment
inserted an explanation to the meaning of "voting in the parliament
against the party' providing that even abstaining from parliament session
or abstaining oneself from voting ignoring the direction of the party
would be deemed to be voting against the party. Thus the provision was
made more rigid to debar members from raising any voice against the
party and this provision has become a permanent obstruction for the
development of responsible government in Bangladesh. This provision
exists still today and by 12th Amendment it has been made more
stringent. (See, details, Chapter VIII)

Fourthly, under the original constitution Article 76 provided for the

parliament to appoint certain standing committees at the first meeting of
each session. By the 4th Amendment this provision of 'at the first
meeting of each session' was deleted. It reduced the importance of
parliament even further. Because now the parliament was not bound to
appoint committees at its starting; it now had the option to pass away
most of its life without framing standing committees. These
undemocratic provisions still exist.

The above discussion makes it clear that the 4th amendment made the
parliament completely ineffective though it was the House of the
representatives of the people.
4. The Amendment took away the power of the High Court
Division to enforce fundamental rights.
The original Constitution of Bangladesh provided for 18 fundamental
rights and the High Court Division of the Supreme Court was empowered
to enforce these rights. Article 44 guaranteed the right to move the High
Constitution, Constitutional Law and Politics 121

Court Division of the Supreme Court and this court could enforce these
rights under the authority of Article 102. But this power of the court was
taken away by the 4th Amendment which provided in Article 44 that
"Parliament may by law establish a Constitutional court, tribunal or
commission for the enforcement of fundamental rights. Thus unlike
earlier now no one had the right to go to the Supreme Court to have his
fundamental rights enforced. It was a constitutional court or tribunal
which would enforce fundamental rights. But the constitutional trickery
done by the makers of the 4th Amendment was a terrible one.

Firstly, all the fundamental rights as enumerated in the Constitution

now turned into a mere show-a set of so-called fundamental rights.
Though they were still termed as fundamental rights, they were virtually
transformed into ordinary rights for their enforcement now depended on
the implementation of an ordinary law.

Secondly, another trickery is that it was not mentioned in the

amended Constitution as to what would be the nature or constitution of
the Constitutional court or tribunal; who would chair that court or
tribunal; what would be their qualification etc. Thus the body which was
to enforce fundamental rights was not a constitutional body; it was a
forum to be made by an ordinary law and like the department of
Ombudsman the parliament was not constitutionally bound to make and
implement this forum immediately.

Thirdly. Article 102(1) was deleted so that the High Court Division
might not make any question or issue any order or direction for
fundamental rights. Since the sinister-looking purpose was to take away
all fundamental rights from the jurisdiction of the Supreme Court, it is
needless to say that the Constitutional court or tribunal as stipulated in
Article 44 under the Amendment would never be an impartial body.

Thus the fundamental rights as enumerated in the Constitution lost

their all significance and sanctity. In almost all legal systems with
constitutional supremacy the Supreme Court is regarded as the guardian,
guarantor and protector of fundamental rights. But this traditional
jurisdiction of the Supreme Court - the role of a sentinel on the qui vive
122 Amendments of the Constitution of Bangladesh

for fundamental rights was snapped away. It is unprecedented in the

history of the sub-continent that the jurisdiction of the Supreme Court to
enforce fundamental rights was taken away.

Present Position: This draconian black provision was repealed and

the democratic provision of the original Constitution was restored by
President Sayem on 28th may. 1978 by the 2nd Proclamation (Seventh
Amendment) Order.
5. The Amendment completely curtailed the Independence of
Judiciary
The independence of judiciary depends principally on the following
there conditions:
a. Appointment Procedure.
b. Security of Tenure; and
c. Adequate Remuneration and Privileges.

a. Appointment Procedure
As to the appointment procedure it was provided in the original
Constitution that the Chief Justice would be appointed by the President
and other judges would be appointed after consultation with the Chief
Justice (Article 95). But by the 4th Amendment the provision of
consultation with the Chief Justice' was withdrawn. Obviously the
Purpose was to make appointments on the basis of political consideration
and favouritism not of qualification and merit. The appointment now
depended completely oil sole wish of the President. Such an
unchecked nomination of judges by the executive is not recognized in
democratic countries; an objective assessment from the Chief Justice or
consultation with tile Judiciary is essential so that men of keen intellect,
high legal acumen, integrity and independence of judgment from among
the lawyers can be taken to ensure independence and impartiality of the
judiciary on the one hand and to develop, on the other hand, the standard
of judicial review) But the 4th Amendment did away with all these
making the higherjudiciary completely subservient to the executive.

See more at Chapter X I X

Constitution. Constitutional Law and Politics 123

Present Position: This undemocratic provision still exists.

b. Security of Tenure
Security of tenure is the most important condition for maintaining the
independence of judiciary. If the judges do not feel secured in
discharging impartial judgment, the independence of judiciary is gone.
For better security of tenure judges should be appointed for a definite
period and the power of transfer and removal must , be a difficult one to
obviate the abuse of power and its capricious operation by the executive.
It was provided in the original Constitution that a judge could not be
removed unless the parliament passed a resolution supported by a
majority of not less than two-thirds of the total members of parliament on
the ground of proved misbehavior or incapacity [Art. 96(2)]. So the
original Constitution provided for full security of tenure and the judges
were fully independent in discharging their functions. But the 4th
Amendment deleted the provision of impeachment and provided that the
President could now remove a judge including the Chief Justice simply
by an order on the ground of misbehavior (Art. 96). Now the incapacity
or misbehavior need not be proved; Presidents subjective intention
became everything to remove a judge. Thus the President became both
the appointing and removing authority of the judges.

Present Position: This undemocratic provision was repealed and the

provision of the original Constitution was restored by President Justice
Sayem on 28th May, 1976 by issuing a proclamation. Afterwards
President Zia on 22nd April, 1977 introduced the provision of Supreme
.ludicia! Council. This provision still exists and it is a healthy provision
for the security of tenure of judges (See more P.341)

Subordinate Courts
As to the appointments in subordinate courts it was provided in the
original Constitution that-
I) District judges would be appointed by the president on the
recommendation of the Supreme Court.
ii) Other Judicial officers including Magistrates exercising judicial
functions would be appointed by the President alter consulting the Public
Service Commission and the Supreme Court (Art. I 15).
124 Amendments of the Constitution of Bangladesh

Again, as to the security of tenure Of judges in the lower courts it was

provided that the control (including the power of posting, promotion and
grant of leave) and discipline of judges and magistrates would vest in the
Supreme Court (Art. 116). Thus both the appointment procedure and
security of tenure in subordinate judiciary were more or less democratic
and healthy.

But the 4th Amendment made both the elements executive depended.
Article 115 was amended to the effect that "appointments of persons to
offices in the judicial service or as Magistrates exercising judicial
functions shall be made by the President in accordance with the rules
made by him in that behalf" Likewise, Article 116 was amended to the
effect that "the control (including the power of posting, promotion and
grant of leave) and discipline of persons employed in the judicial service
and Magistrates exercising judicial functions shall vest in the President."

From the above discussion it becomes clear that the whole judiciary
now came under the absolute grip of the President. He now became the
maker and unmaker of the judges. "The whole judiciary which
traditionally held a special position in every Constitution of the sub-
continent as a basic organ for the functioning of rule of law was now
made completely subservient to the executive .....The Amendment
changed the entire institutional context of the judiciary which for a long
time played an important role in striking a balance between the excesses
of the executive and their victims, between law and its application.......
The Amendment not only demolished the sanctity of the service but also
the institution of the judiciary itself."' In words of Justice Abdur Rahman
Chowdhury 'if the government can select judges suitable to itself then
that would be the end of the judicial system which is the last resort of the
people against unconstitutional laws and arbitrary executive action.
Experience, however, teaches us that while it is desirable to inject jLlstice
into politics, it will be disastrous to inject politics into justice. Once
Judiciary becomes subservient to the executive and to the ruling party's
philosophy, no amount of enumeration of fundamental rights in the
constitution can be of any avail to the citizens because the court of
Justice would then be turned into courts of government. It has been

Ahmed Moudud, Ib.d, P.239

Constitution, Constitutional Law and Politics 125

rightly said -'If the salt has lost its savour wherewith shall it be salted?"
In the light of all the changes made in respect of the judiciary as a whole
one can easily understand how illusory then to say that "all persons
employed in the judicial service and all Magistrates shall be independent
in the exercise of their judicial functions" (Art. I 16A). It was really the
greatest Constitutional bluff on the part of the maker of 4th Amendment.

Present Position: The undemocratic provisions introduced by 4th

Amendment relating to appointment of judges and Magistrates of the
subordinate judiciary still exist. Even the 12th Amendment did not
correct it. However, Magistrates courts are noW separate under statutory
arrangements (see chapter XIX for details).
In relation to control and discipline of the subordinate judges the
undemocratic provisions introduced by the 4th Amendment were
repealed and the healthy provision "in consultation with the Supreme
Court" as was provided by the original Constitution was revived in 1978
by the Second Proclamation.
It is pertinent to mention here that the provisions as to adequate
remuneration and privileges as indicated in Article 147(2) was kept
untouched.

6. The Amendment introduced one-party political system.

The most significant and far-reaching aspect of the 4th Amendment
was the provision for a single national party in the state. A new part VIA
with a new article 117A was created for this purpose. According to the
new arrangement, the creation of the National Party was left with the
subjective satisfaction of the President. It was provided that in order to
give full effect to any of the fundamental principles of state policy set out
in part II of the Constitution, the President could-
"direct that there shall be only one political party in the state. Once the
President made an order for one party under Article 11 7A-
i) all political parties of the state would stand dissolved and the president
would take all necessary steps for the formation of the National Party.

Chowdhury, Justice Abdur Rahman, Democracy, Rule of Law & Human Rights,
(Dhaka: Dhaka University. 1993), P. 13
126 Amendments of the Constitution of Bangladesh

ii) the President by an order would determine all matters relating to the
nomenclature, programme, membership organisation. description, finance
and function of the National Party.
iii) once the National Party was formed each member of the parliament
would have to join the party within a time fixed by the President ; otherwise
he would cease to be a member of parliament and his seat would become
vacant.
iv) none would he qualified for election as president or as a member of
parliament if such was not nominated as candidate by the National Party.
v.) a person in the service of the Republic shall be qualified to he a
member of the National Party."
As the arrangement for one party system was incorporated some
sinister-looking features are noticeable.

Firstly, the entire scheme of having one National Party in the country
was made linked with the fundamental principles of state policy. Though
the declaration of one National Party abolishing all existing parties in the
state depended solely on the subjective satisfaction of the President it
was conditioned that he was to justify his declaration of one party by
saying that formation of one party was necessary to give effect to any of
the fundamental principles of state policy. This was completely a
Constitutional bluff, for in no way the formation of one party keeps any
connection with the implementation of fundamental principles of state
policy. The implementation of fundamental principles depends on the
economic development.

Secondly, all civil and military bureaucrats who should work for the
cause of the nation being above politics were now given the right to take
part in politics.

Thirdly, members who got directly elected by the people were now
liable to lose their membership by operation of law, if they did not join
the National Party. So the people's aspiration and mandate came to be
trampled and demolished under one man's (President) order.

Fourthly, the National Party was not in a real sense a political party.
It was more than a mere political party. Because it became an integral
Constitution, Constitutional Law and Politics 127

part of the Constitution; its declaration and organisation were to publish

through extra-ordinary gazette notification. It was, therefore, a part of the
government.
Formation of One Party
In accordance with the provision of the Article 117A as introduced
by the 4th Amendment the President declared the formation of a new
National Party for the country under the name and style "Bangladesh
Krishak Sramik Awami Leage' (BAKSAL) on February 24, 1975. As a
result, all existing political parties instantly stood dissolved. In June the
government promulgated the Newspaper (Annulment of Declaration)
Ordinance which allowed only 4 newspapers' to continue publication and
banned the rest. But all these 4 newspapers were to be owned and
managed by the state. It brought the whole news media completely under
the absolute control of the government. Thus a new system was
introduced where no political opposition or press freedom was visualised.

Present Position: The provision of one party system no longer

exists. The whole part VIA of the Constitution was omitted by issuing a
proclamation on 8th November, 1975 by President Sayem.

7. The Amendment buried the whole concept of local

government
Local government is one of the most important institutions of
democracy. Modern state administration is almost unthinkable without
devolution of power to the local governments. Due to increase of
population as well as to huge expansion of governmental activities
certain matters of policy and administration concerning national and
international interests are reserved for central administration and the rest
wide range of governmental functions are vested in local authorities. In
modern state administration the bulk of public services are actually
provided by local authorities rather than by central departments. 'It may
even be said that at least from day to day, a citizen would seem rather
more likely to be directly affected by actions of his local authority, than
in respect of activities of central government.'2 Local Governments are

i) Dainik Bangla ii) Bangladesh Times iii) lttefaq & iv) Bangladesh Observer.
Jones. BL. Garners'Ad,niniserative Law., (London Buttcrworths. 989), P. 23
128 Amendments of the Constitution of Bangladesh

elected with a view to ensuring governance from the grass-roots level and
participation of the local people in the development and formulation of
solution of their own problems and needs. In developed countries like
USA, UK there is an extensive network of local governments, the history
of which dates back many centuries. Local governments in democratic
countries are given the responsibilities for the welfare of their
communities in providing for policing, highways and public utilities such
as gas, water and electricity. The system of local government helps in
different ways bringing transparency and efficiency within the state
administration. First, it helps solve local problems locally and relieves
the central government much of its responsibility to deal with trifle and
local matters. It, therefore, allows the central government to employ more
methodic and prodigious effort to solve national and international
problems; second, it relieves MPs much of burden of local
responsibilities which people usually expects from MPs. It therefore,
allows them to concentrate more in national legislation, committee
functioning and controlling the central government; Third, it
decentralises administrative functions, responsibilities and powers and as
a result channel-based corruption and red-tapism by the bureaucracy
become impossible; Fourth, as it allows MPs employ more times in
committee functioning the central bureaucracy will come under the direct
control of parliament. Fifth, it allows the government to reduce its size;
Sixth, if local government are institutionalised, they will help develop
leadership from the grassroots level giving gradually a strong base in
democracy.

Our Constitution-makers have provided for accountability of both the

central government and bureaucracy which is to be ensured through the
proper functioning of parliament and its committee system. Similarly
with regard to local administration, the express intention of the
Constitution-makers was also to make them accountable to the elected
functionaries. Provisions were made in Articles 59 and 60 of the
Constitution to devolve the responsibility for both development activities
and administration into the hands of the elected representatives of the
local government bodies, The Constitution-makers envisaged the newly
independent Republic to be a democratic order in which, 'effective
participation by the people through their elected representatives in
administration at all levels shall be ensured' (Article 11).
Constitution, Constitutional Law and Politics 129

But all these aspirations of the Constitution-makers were removed at

a stroke of pen by the 4th Amendment. The entire chapter II of Part IV of
the Constitution dealing with 'Local Government was deleted. Also
democratic provisions of 'effective participation by the people through
their elected representatives in administration at all levels shall be
ensured in Article 11 was deleted. Thus the intention was to uproot the
entire democratic base from local levels.

Present Position: The democratic provisions of local government

have been re-introduced by the 12th Amendment.
The 4th Amendment undermined the spirit of liberal
Democracy in Bangladesh.
The evolution of the concept of liberal democracy or political
liberalism can be traced form the declaration of Rights of Man and
Citizens in 1789 after the French Revolution and the American
Declaration of Independence, 1776 where it was said that the civil and
political rights of the people must be guaranteed and the government
must be formed by consent. Liberal democracy is, therefore, possible in a
system where liberty and rights of citizens are guaranteed and the
government is formed with the consent of the governed. A governmental
system with liberal democracy must have the following elements.

Firstly, the government must be representative i.e., it must he formed

with the consent of the governed. In other words, the government must be
elected directly or indirectly by the people. Professor Hood Phillips says
that representative government implies that the electors are free to
organise themselves into political parties, to express their views and to
criticise the policy of the government.

Secondly, the government must he responsible. This responsibility of

the government may be direct as in the parliamentary system or indirect
as in the presidential system.
Thirdly. people's freedom and civil and political rights must be
guaranteed and such a guarantee means principally that—
People have the right to organise themselves into political
parties.
There is the right to criticise the government.
130 Amendments of the Constitution of Bangladesh

There is the right to freedom of thought and press.

- There is a national tribunal or coLirt which exercises the
independence to enforce basic rights and freedoms of the people.

This is why sir Ivor Jennings says that 'to find out whether there is
political liberalism it is necessary to ask if there is an opposition". So
liberal democracy is possible both in Presidential and parliamentary form
of government. But in one party dictatorial system it cannot he thought
of, ir the concept of liberal democracy itself emerged as a necessary
outcome of struggle against autocratic and dictatorial regime. So what is
necessary for the success of liberal democracy is that there must be free
political oppositions, freedom of press, guarantee of civil and political
rights and above all freedom to criticise the policies of the government so
that the government can be kept responsible to the governed.

Let me now proceed to evaluate how the 4th Amendment undermined

the spirit of liberal democracy in Bangladesh.
Firstly, the Amendment introduced one party system banning all
opposition.
Secondly. freedom of press was taken away when, under the shield of
-Lb Amendment, all except four newspapers were banned and that four
papers were declared as government owned papers. It, therefore, left no
scope to criticise the government through press.
Thirdl y , the Amendment took away the power of the Supreme Court
to enforce fundamental rights and it left no scope for the guarantee of
rights and personal liberty.
Fourthly. the Amendment made the parliament a useless forum; its
life and death came to the grip of the President. There left, therefore, no
scope to make the government responsible.
Fifthly, thoueh the Amendment did not abolish the process of
electing members of parliament and the President, it left no scope for
electing true representatives of the people. Because under the new system
people had no option but to vote in favour of a candidate nominated by
the one National Party as envisaged in the Constitution.
Thus the system introduced by the 4th Amendment left no scope for
hera I democracy in the country.
Constitution. Constitutional Law and Politics 131

REASONS BEHIND THE FOURTH

AMENDMENT: MUJIB'S POLITICS AND
HIS 'SECOND REVOLUTION'
One of the cogent reasons for the creation of Awami League was "for
preservation and restoration of parliamentary democracy". From the very
day of its formation preservation of parliamentary system was one of its
aims and objects. It fought against the undemocratic system introduced
by Ayuh Khan in his constitution of 1962. Even in the very firs' point of
its historic 'Six Points' AL was firmly committed to parliamentary
system) From historical point of view, Sheikh Mujib, who was a
political desciple of Hussain Shahid Suhrawarthy was a strong supporter
of, and devoted to, parliamentary democracy. The 23 years struggle led
by AL against the Pakistan's ruling elite was, therefore, the struggle for
the establishment of a real parliamentary democracy. The AL's manifesto
of 1970 election was also to establish a real living democracy 2 on the
basis of 'Six Points' programme. Supporting it the people gave triumphant
verdict in favour of the AL in the election. Thus the system of
parliamentary democracy as introduced in the constitution of Bangladesh
was, therefore, the deliberate and conscious decision of the AL and it
virtually reflected the aspirations of the people nurtured for two decades.
A vital question, therefore, arises- What led the AL to repudiate
parliamentary system and to adopt an ever-hated dictatorial rule? We
shall see that the answer to this question will necessarily give rise to
another counter-question- Was it AL or Mujib himself that repudiated
parliamentary democracy?
In quest of the real reason first we should evaluate the reasons given
by the makers of the 4th Amendment. In justification of the change by the
4th Amendment Mujib narrated the following arguments.
A. Defects of Colonial Bureaucracy
In support of the change Mujib said-
'the system we find today is the British colonial system .....this is the
system of the colonialist to exploit ... to exploit the country ... I want to
smash the old moth-eaten administrative system and create a new one ... This
new system ot mine is the revolution'.
Fisrt, here he referred to the British colonial bureaucracy which,
according to him, was all of exploitation. The irony is that

Ahmed. Moudud. Rangaldesh Constitutional Quesifor .4utonomv, Ibid. I'. 87

2 Ahmed. Moudud. Ibid. P. 197
132 Amendments of the Constitution of Baneladesh

Mujib himself got his whole political litè developed under this system; he
also had been a minister for a short time under this very system during
the undivided Pakistan period. During 25 year struggle for democracy in
Pakistan regime he never opposed this system; neither was it the
manifesto of any of 1964. 1970 or 1973's elections to change this colonial
system; neither was it opposed by him or by the Al. while the
Constitution of Bangladesh was being adopted. Now suddenly he got the
system which is recognised and institutionalised throughout the world
moth-eaten.
Second, the vital point is that what system Mujib was going to
introduce in the place of colonial bureaucracy was unknown to him. He
did not get any planned system ready to introduce. Was it possible for
him to run his administration without a bureaucracy, whatever be its
nature?
Third, bureaucracy must be an impartial and lion-partisan institution
to provide expertise and knowledge to and to abide by the orders of the
ministers in policy formulation and implementation. After independence
the bureaucracy which was created by our leaders was not any imposed
system over us by any great power. The bureaucracy in the new-horn
coLintry was not colonial; rather it was shaped as colonial from its
inception and Mujib's wrong policy played the key-role in it who had
little knowledge about state administration. (i) Mujib reinstated in his
new administration both civil and military bureaucrats of defeated
Pakistan regime who had little or no commitment to Bangladesh. These
expatriates from Pakistan began to infuse schism and factionalism within
the whole bureaucracy: (ii) He and his party men blatantly patronised and
favouritised the administration wherever possible ; (iii) Corruption by
Mujib's ministers, his influential party men and relatives made the door
open to the bureaucrats to come into open competition in corruption and
conspiracy; (iv) Mujib took certain excessive stern legal measures with a
view to curtailing some important rights and status of bureaucrats which
not only posed a threat to both civil and military bureaucrats but also a
threat to the very foundation of bureaucracy as an institution of
democracy. This is why the bureaucrats morale was at its lowest during
Mujib era: (v) Mujib imposed blame over the bureaucrac y for the
breakdown of his administration but this bureaucracy was created by his
government; he never thought of institutionalising bureaucracy as an
essential organ of government; lie did not know how to behave with a
top-ranking bureaucrat; sometimes he insulted top-ranking bureaucrats in
Constitution, Constitutional Law and Politics 133

public.' All these were the factors which turned the bureaucracy into an
unruly institution-a colonial institution to exploit people and to disrupt
the governments policy implementation process.2

Fourth. he argued that "... the amended system that we are taking is
also a democracy; democracy of the exploited people. There will be
voting right for the people in it.' It certainly makes one amazed how
democracy could he thought of in a system where there remained no right
o speech, no right to press, to criticise the government, to fonfi or get
into a party, to judicial remedies, to enjoy fundamental rights. Had he
really wanted democracy for exploited people, how could he curtail the
independence ofjudiciary? Was the judiciary playing any negative role in
democracy? Was judiciary particularly the Supreme Court doing any
corruption? [low cou!d lie delete thedemocratic provision. "effective
participation by the people through their elected representativ in
administration at all levels shall be ensured"?

Thus what Mujib contended about the defects of colonial

bureaucracy were not the real reasons for introducing the 4th
Amendment. Defects did not lie within the system; it lay with his lack of
administrative and policy formulating capacity to run the system.

B. Political Crisis
In explaining the rationale behind the change Mujib said that the old
parliamentary system was a 'free style democracy' which was not able to
cope with the situation. And for this 'free style democracy lie blamed
seriously the opposition parties particularly the JSD and underground
revolutionary parties and their destructive activities. He pointically
argued that the acts of political terrorism committed by the political
opposition had resulted in the murder of thousands of his party workers
includin g 4 members of parliament. He argued that certain groups who
were opposed to government accumulated weapons in a clandestine
manner in their hands and by their arms power they were trying to
overthrow his government and doing all looting and secret killing.
1-lowever, a reasonable explanation of the political situation of the regime

It.ed on personal interview with prolessor Mt'talTar Ali arncd (NAP)

For inor. see. Pt'. 469-474
134 Amendments of the Constitution of Bangladesh

will prove such an argument of Mujib contradictory for the following

reasons.
First, it was not the opposition parties but his own wrong policy and
some of his own party leaders and workers who were principally
responsible for free style democracy and for secret political killing and
terrorism. Petty factionalism and personal rivalries led to the killing of a
large number of his workers down to the village level'.'

Second, MU j ib's person ificatory dogma 'Muj ihhad' 2 (Mujihisni) was

in no way less responsible to give rise to factionalism and splits into the
party and political chaos. It made open split into the student wing of the
Al. giving rise to pro and anti-Mujihisni groups and Mujib provoked the
splitting situation by directly opting for pro-Mu jib group. "Mujibbad'.
Father of the Nation—all these were rotten issues of Mujibs personality
cult and Mujib felt very cosy in using these as slogans by his followers.
All his party men, officers and the whole administration, in a sense, the
whole country remained busy throughout Mujih era with
institutionalising these dustbin-issues disregarding the vital issues of
national development.

Third, when in 1974 the armed forces were ordered to collect

unauthorised arms and prevent sniugglng, the officers and jawans found
to their dismay that as was indeed widely believed, most of the holders of
unauthorised arms and the ring leaders of smuggling ope;ittions were
proteges of powerful AL leaders incl.iding the brother oiSheikh Mujih.3
As they began to act against these AL supporters. they were asked to
recover arms only from the cadres of the undergrotind parties and not to
disturb AL supporters.4

Ahmed. Moudud. JJaUL'hidi'sll 6ra of .Sheth'/i .tlujibur ku/now,, I'. 251

Also see. Mascarenhas. Anthon y. .1 legacy of' Blood. (London: I fodder & Stoughton,
1986). P. 44
2 To get idea ovcr Mujibbad see. Klein. Li Iltir Rahinau. I.eilci shii ' Crisis in
/Jio,g/udesh. P1'. 95-97 & I also see Rouiiaq Jahan. i/mi. 19'. 70 & 115
Manirui,ainan. Ialukdcr. The /lai,g/ac/e.c!' /?cvoluiioii wet /i.m .1110inw/,. 2nd ed.
Dhaka: U I'l.. 1988). I'. 184
Maniru,.zaman. 'Ialukder. Thid. P. 184
Constitution, Constitutional Law and Politics 135

Fourth, it was Mujibs wrong policy which was responsible for giving
rise to underground parties. His plan of disarming all the freedom lighters
without making for them any guaranteed scheme which could provide for
them jobs and organise them into a productive force for national
reconstruction went almost in vain.. Many of the freedom lighters
retained their arms. Even many of Mujibs own party men did not
surrender arms) This wrong plan virtually gave rise to another area of
conflicts-(I) between freedom lighters and government; (2) between
freedom lighters and collaborators; and (3) between freedom lighters
themselves. Most of the freedom fighters were thus thrown to take refuge
to different means of livelihood. A considerable number of them turned
bandits which gradually paralised the political situation. 2 and strengthen
the underground parties. Lastly when in 1973 Mulib granted a general
clemency to 30000 collaborators held in prison, they came out in open
air, began to curtail the influence of the freedom lighter and played the
key role in disruption of the economy, sabotage and conspiracy to undo
Bangladesh. Though it is said that this clemency was the manifesto of
Bengali psyches and sentiments'- the real reason was political-to get
support from the rightist groups and to curtail and lastly destroy all
influences and unity of the freedom lighters who had already joined
various underground and leftist parties.4

Mujib knew about it and he made concessions to his pal-tymen on the question of arms
surrendering. Moudud.. Ibid, P. 83 (Footnote 14)
See Ahmed, Moudud. Ibid, P. 39
It is pertinent to mention here that on point ot disarming freedom lighters Tajuddin
Ahined had a plan that hctbrc disarming all freedom lighters should he recruited to a
National Militia SO that their patriotic spirit could he turned into an organised lbrce for
national reconstruction and if they were disarmed without making for them any
guaranteed scheme a large number of amis could not he recovered. But Sheikh Mujib
did not accept this plan rather he gave emphasis. in ' the first instance, on disarming
all the freedom lighters. I Ic told that to form a National Militia would cost a huge
amount of money. But lajuddin in response told that if a huge amount was not
expended to this scheme a far larger amount would he destroed. Also the freedom
lighters had series of discussion with Mujib but he did not hove from his decision of
disarming at first instance (based on personal
personal interview with Barrister Amir-tJl Islam
and K.M. Ohaidur Rahman).
Based on personal interview with Barrister Amir-tJl Islam.
See also Khan. i.illur Rahma,i. Ibid. P.95
136 Amendments of the Constitution of Bangladesh

Fifth, it was Mujibs wrong policy and politics of patronage and

favouritism that made the whole administration a hot bed of corruption.
'Mujib reinstated several senior officers with established reputations for
corruption who had been dismissed from the Pakistan Civil Service.
Some of them were placed in positions of influence near the throne
many other officers had little or no commitment to Bangladesh. As they
say in London put's: they were only 'here for the beer-and made no bones
about it."' No country that has wretched its freedom through a bloody
struggle retains the civil and military officers of the defeated
administration. Whether it was Fidel Castro or Mao Tse-Tung, the fact is
that the new leaders had got rid of the officers of the previous
governments and framed new rules and laws in the interest of the
country. For this reason they have been able to foil one conspiracy after
another. But in Bangladesh Sheikh Mujib was persuaded that all
experienced officers of the previous regime would be necessary in the
reconstruction of the country and so they should be given new posts in
the administration. Accordingly except a handful of officers who were
accused of open collaboration with the Pakistani Army all officers of the
previous government were allowed to retain their jobs by Mujib. These
officers became patriots overnight by signing a bond and declaring
allegiance to Bangladesh. It was these officers of the former regime who
persuaded Mu j ib that it had become very difficult to control the boys of
Mukti Bali ni-"There will be trouble if you do not take bold measures
against them. They will become a menace in the future. Mujib put his
relatives in key political and administrative positions. 3 In the nationalised
industries majority of those appointed to managerial posts were AL
workers who grew rich overnight by smuggling spare parts and raw
materials to India. Again, the distribution of both locally produced and
import:d goods wer carried on by licensed 'dealers' most of whom were
AL workers rather thafl professional traders. The AL licensees sold their
permits to professionals at high prices. Thus a middle class was created.
It was this class who, by exploiting the foreign aid that flooded
Bangladesh after the war, were responsible for man-made famine in
1974. Again, most of the permits for intending (import-export) firms
were given to AL workers and sympathisers. In addition, about 60,000

1 Mascarenhas. Anthony. Ibid. P. 27

2 I)asgupta. ibid. P.31
.iahan. Rounaq. Bangladesh Politics Problems & Issues.. Dhaka UPL. 1980).P. 13
Constitution, Constitutional Law and Politics 137

houses abandoned by non-Bengalis were appropriated by Al, leaders and

workers' "Among many local-level ALs the expression of Louis XIV of
France seemed apt: The state is ours ! Let us enjoy it.' Many PCSOflS
qualified only by political persuasion were appointed to key positions
thereby adding both to inefficiency and to corruption." 2 It was found that
the closest associates and family members of Mujib became involved in
blatant corruption and smuggling operations. Gazi (iolam Mustafa one of
Mujib's trusted political associates earned international notoriety for
misappropriatin g Red Cross and United Nations relief goods. I-Ic was
titled as "the fox in defence of ducks." 3 Sheikh Abu Nasser, MLljih's only
brother, was one of the ring leaders of jute smuggling operatioll to India.
Each of Sheikh Mujib's nephews— Sheikh Faziul Hoq Moni, Abu] Hasnat
and Sheikh Sahidut Islam-not only made quick advantages in politics but
also amassed much personal wealth by illegal means. 4 Mujib's two sons
Sheikh Kan3al and Sheikh Jamal. however, were not above corruption
and other misdeeds. 5 All these were known to Mujib but on many
occasions he was altogether blind about them! The conditions of
nationalised Jute Mills were most deplorable under the incompetent and
corrupt hands of managers and administrators. It was alleged that hales of
raw jute had been smuggled across the border. All these were preplanned
and Mujib knew about it. 7 "Mujib Knew which minister and which
officer took bribes, who manipulated :he markets and who were the king-
pins behind the smuggler gangs and currency racketeers. His intelligence
services kept tabs oil But Mujib adopted a camalier attitude to
all this corruption. Once when a leader of uother political party drew his
attention to a particularly seamy scandal involving one of his ministers,
Muj ib shrugged it oft with the remark, 'Yes. know he is a greedy
bastard.' This makes clear that it was not the lack of accountability that
allowed corruption to spread, but the fact that Mujib did not enlbrce this

!,1aniruzzanian. laluk jcr. Ibid. I'. 159

Baxter. Craig. (iovcninient and Politics in South Asia. 2nd ed. 1'. 259
I lasanuij.anian. Anami League and BA KS.•t 1. 1972 75. (in Bengal ) . I140
Maniruiainan. i'alukder. ibid. PP. 159-160
Khan. till or Rahinan. I.edcrs/up Crisiv in /lan,c't,desh.
(I)haka : tiN.. 984)1'. 216
DaaupUi. Sukharanjan. tliduighi Massacre in i-thu/a. (Nc Delhi Vikas l'ubhishiing
I louse Pvt. lid. 109). I'. 74
I )asgupta. Siikhranjan. ibid. P. 74
l)asgupta. Ibid. I'. 35
138 Amendments of the Constitution of Bangladesh

accountability' If anybody complained to Mujib about corruption in

high places, Mtijib usually dismissed the complaint with typical comment
that the people about whom the allegations were made had undergone
great sacrifices for Bangladesh. 2 Thus it was Mujib who, though himself
was not corrupt, allowed his party-men and relatives to make Bangladesh
an object of rapine and plunder - a complete state of siege. Patronage
resulted that the power at every level was personalised, leaving the
masses very little scope for appeal to instituionalised authority for
redre:s of their grievances. Even the rural masses who had previoLisly
given their unquestioned loyalty to the leader, therefore, started holding
Mujib responsible for deteriorating conditions. 4 Thus when Mujib
repeatedly said that he could not get the countr y moving to rebuild 'Sonar
l3angla' (Golden Bengal) because of widespread corruption around him,
he just tried to pretend himself to he innocent. And when the operation of
army to stop corruption was withdrawn by him for political pLirpose, it
can undoubtedly he said that Mujib was more concerned about his power
than the question of' national interest. 'M uj ib's unwillingness lo arrest
people guilty of economic crimes or to cLlrb anti-social propensities of his
close associates and relatives, was the major factor in shifting sentiments
against him. By 1974 Bengalis had already begun to describe Mujib
whom once they had affectionately named Baicih/iandi (Friend of
Ben(-al) as the main person responsible for the troubles they were
facing.'

Thus the problem of deplorable socio-economic condition which

forced Mujib to introduce 4th amendment did not necessarily lay, as
Mujib argued. with the opposition parties but with his own wrong
decisions one after another and his politics of patrona g e and favouritism
towards his Party supporters and relatives.

I/'i/ 1 1 . 28
- \liii,,y uiitii. I alukder. ihuf. I'. J 91 (lotnote 16)
' kIiu. /Mur Raliinait_ /61(1 P.115
/11/ I'. 108
' Khan. /illur Rali piian. Ibid. I'. 126
Constitution. Constitutional Law and Politics 139

C. Pressure within the Party

Some authors contend that one of the reasons of introducing 4th
Amendment was internal party pressure) It was Sheikh Moni and his
faction who, from 1974, began to advocate publicly the view that the
parliamentary system had failed in Bangladesh and 'second revolution
was inevitable which would he led by MLIjib. I lere I would poinlically
argue that t his pressure within the party W as not any real and independent
pressure: it was rather tactically created, as the real situation dictated, by
Mujib himself so that he could get a favourable environment towards his
authoritarian rule.

First, since the pressure to introduce one party system first came
from Sheikh Moni. Muj lb's nephew and one of his closest associates.
"one was not sure whether it was it balloon by M uj ib himself."2

Second, all party leaders were committed to parliamentary system

since that was the onl y model the y were tiuiiihiar with and nowhere can a
minilnttmindication he fiund that any of the leaders of the AL opted for
or requested Muih to introduce one party system.

Third. It is doubtful how could a lunior groLip of Al. led by Shcikh

Moni dare sa y Mujib-"I.eader! It l ooks odd that a persor vill sit as a
President above ou and y ou, the Father of the Nation. will remain a
mere Prime Minister. We request you to be the President of Bangladesh
immediately revertin g the parliamentary system into a Presidential one
And we also want you to be the life-President of Bangladesh," if he did
not allow them say so. It was quite unthinkable that a junior laction of the
party could utter such words before a dominating personality of Muj ib
who believed he was Bangladesh- 1 ' and who used to say egotistically to

13h tivtii. M. A. ( ) adud. l'oli/ical /)'t.'Iopin'iu of floniculesh. (I )h,tka: k I i hrar

I 989)1 II Ik'ngali . I'. 89
,Iahati. RtTunaq. ibid. I'. 119
M un trill an1atL 1 a I ukdcr. Ibid. P. 179
- lattan. Roiinaq. i/tic!. P. 119
$ See. Min. M.A. Vazd . Static Evenis ,I,'owu/ SitetI/, .1 Iu,b ciiI JJIIL'IcIih's/l. (ii
Itcitaali)(I)Iiztka:IiI'I.. 993). Pt'. 197-198

/.irili. I .aircl1ce. flcuic'Iociesh ii'oiti 11',)t/, in his/un!. C I)Itakn t I'.I . 199-1). I'. 93
140 Amendments ol'the Constitution of Bangladesh

the people. 'it is Mujihur Rahrnan saying this'' and against whom there
was nobody in Bangladesh to raise any voice.
It is not, therefore, correct to say that pressure within the party
compelled M uj i b to introduce 4th Amendment.

I). Role of the Awami League.

Despite the fact that the pressure within the party as has been
mentioned just now, was not a real one, it is logical for ote to say that
4th Amendment was made by the AL not by Muib since MLttih could not
CIO that without the support of AL MPs. But it is a technical truth and
such an artzutuent can be posed for the sake of criticism only. The real
situation dictated 01 lwrwise

First. thou g h Muj lb was empowered at the meeting of the AL

parliamentary party 'to take any step he considered necessary for
resolvine he probletis the country was facing', no freewill of the
members acted behind it. 'The whole atmosphere of the meeting was
quilL' intimidative: it was like it terrible slaughter-house and there was no
protest for fear of being killed .' 2 "None was in a position to controvert
hat M uj ih said. A large number nt members did not rai c e their voice out
of tear of being killed by the counter-forces within the party and there
were allegations also that the plan to chan g e the Constitution could he
proceLded so easil y because tactics of' intimidation and blackmail was
applied b y the key-rulin g groups over others. In such a situation
members were swa y ed into acceptin g the proposition for a change.

I )isgupla. 1/0/. I'. 73

!tased oil peNoilal Iilter\ ic oh Itarrister Mititil Isinn. o ho ilehct.,d protesting
the 4111 Anieiidtiieiit Bill. ltarrister Moititil t Iissaiii also told iite that he tried to get
support ol at least 25 Mi's to oppose the plan of Mujih. t1ccaue. accordin g lOni. if
25 M Ps could oppose \- luijih. it souId hate been it] possitile dr him to introduce the
change. But 11mle raised ,uee out ut far it hei;ie killed b counter lorces u thin the
pat-tv. Some ol the I ietuhers uerc ei\ cii lrilttluui v,arnile that i tlie ould oppose.
the y (u('Uld be (lit into piLces in d led to does.
I le also told ne that some uI tie \ - tPs tere tiptne U [lie I louse vlieuu -Itli Amendment
Rill as adopted. or this oas ai.Laulst their political c o mmitment and tltc did not fight
liii ill M1Il10rit;11_i311 rule
Constitution, Constitutional Law and Politics 141

Mujib's authoritative stature was the single dominating factor in creating

an atmosphere for the members of parliament to bedevil their own
status. 1 'The party submitted to the threat and gave full authority to
Sheikh Mujib to take Such measures as were necessary for the national
interest."'

Second, if the AL had opted for one party dictatorship, it would have
not demanded for introducing parliamentary system after Mujib's killing
when political activities were liberalised. During the whole Ershad
regime the AL struggled for parliamentary democracy and after the fall of
Ershad regime in 1990 it was again the AL which spearheaded the
campaign for reversion to a parliamentary s ystem and lastly it compelled
BN1 (majority winning party in the 5th parliamentary election) to
introduce parliamentary democracy.

Third, an investigating look will reveal the idea that it was not the
AL that proceeded to introduce authoritarian rule. Because under the
dictatorial leadership of Mujib AL as a part y did no longer remain as an
institution of democracy particularly during 1973-75. There was nothing
as ideals and principles of AL as a political party; everything virtually
turned into the whims and caprices of Mujib and he himself became the
AL. His whimsical politics of patronage and favouritism destroyed the
ideals of and democracy within the party. "From the way Mqjib ruled
Bangladesh, both before and after the 4th Amendment. it can be said with
all fairness that as long as Mujib was alive he was Bangladesh. He had
the total control over the party, government and parliament".3

It is, therefore, clear that what Mujib said in justification was not the
real reasons behind the 4th Amendment; nor was it any pressure from
within the party. The real reason lay with MU lib himself. He was not
feeling cosy in pal iiamntarv democratic system. He struggled for
democracy but he himself coming to power was not prepared to give and
institutionalise democracy. Struggling for democracy being outside

Ahrncd MOUdUd. Thid. P. 234 & 259

2 Man iruzzaman. l'alukdcr. ibid. P. 179
I lakim. Muhammad A . Bangladesh Politics i/ic Sliahahuddi,, Interregnum. Ibid.. P.
72
142 Amendments of the Constitution of I3an0ladesh

power and institutionalisation of democracy bein g in power are two

different phenomena of politics. The former does not need SO much
education. wisdom and vision, since it is almost a one-way traffic. And
the qualities which one should possess to lead a movement particularly in
a third world country where the largest section of the population is.
illeterate and poor are basically two demagogy and friendly and
sympathetic behavior towards people which can create special appeal to
them. But in (he latter it essentially requires many-sided knowledge.
particularly substantive knowledge and education over various
insl]tutions of democracy and their mechanisms. When a leader is in
power he finds himself in constant pressure from various forces both
from within the state and from outside which he has to face with careful
decision and steps because, politics as far it relates to state administration
is never a safe way. MLIjih did not know how to drive the car of
parliamentary democracy; neither was he prepared to get learning over its
proper m.:hi.nisrn froin his learned associates. This was mostly because
he was a leader without proper institutional education. Leadership
without education and vision is a like a drunken driver of a car of
democracy.

It is vehemently argued by many of Muj lbs staunch supporters that

Mujib had no lack of sincerity to establish and institutionalise
democracy. It is argued that Mujib was not a dctator; rather he was made
dictator. He was made to change the system.! But the practical situation
and Muj lbs activities do not necessarily prove so. I do not believe in ones
hearsay sincerity like a fairy tale if it cannot he substantiated by ones
performance. That Mu,jib had no Sincerity to institutionalise democracy
in Bangladesh and that he had not the least respect towards parliamentary
democracy can he substantiated by various facts some of which have
already been discussed earlier.

The author had interviews with MR. Akhtcr Muko! (a close associate of' Mujib. and
particularl y famous for his 'Charainpatra during the war of liberation and now a writer
and journalist) and Abdul Mannan (first I tonic Minister under Mujib cabinet, a
minister of Mostaq cabinet and now all and a Presidium member of the AL). they
told the author vehemently that Mujib had done no wrong in the political development
of Bangladesh: in no way is he responsible fir the setback of constitutionalism in
Bangladesh. In response to sonic counter questions they told that Mujib was
compelled to take some repressive measures under the pressure of the prevailing
situations but those cannot he said to he his personal limIts.
Constitution, Constitutional Law and Politics 143

From the very beginning of parliamentary democracy in Bangladesh

Mujib began to show his intolerant and dictatorial atlitLide. Returning to
Bangladesh lie instantly changed the governmental system from
presidential to parliamentary one but lie did neither make the cabinet
responsible to the Constituent Assembly nor the Constituent Assembly
was allowed to do legislative functions. And the most important point is
that he changed the system at his own initiative; of course, as the
President under the Proclamation of Independence he had power to do so
but he should have, had lie been a trite democratic leader, taken the
consent of elected representatives of Bangladesh (the erstwhile East
Pakistan) if they actually wanted the Constituent Assembly devoid of
legislative functions. Thus the first act done by Mujib in his long
cherished free land was undemocratic and dictatorial. And when this
most vital question was raised by K.M. Ohaidur Rahman in the
Constituent Assembly. Mujib became almost furious and lie technically
by-passed the subject requesting the Speaker to oust him (K.M. Obaidur
Rahman) from the Assembly*.
* See. Constituent .lsse,nh/v Debate Vol-11, P.23. It i ' as the ,7jQ5/ iinp'n-tani
question concerning the start of constitutionalism in a new horn co//naT on
which i lujib should have given, had he been a true democratic leader, an
explanation H '/n the Constituent As.se,nhli' was not given legislative /unction? /
made a thorough search in the Assembl y Debate but nowhere had / found even a
iiorcl justifying the denial of ('onstituen! .lssenthlvs legislative poller. / asked
K.ti Ohaiclur Rahman if/ie'was to face any hostile situation after he had made
such a question pointing to Sheik blujib in the .'lsse,nb/y. I-fe i'epeatev//y refused
10 (lflSli'Cl'.

Why was not the Constituent Assembl y given the legislative power? In
response to this question most political leaders have flair (I answer.
Both Dr. Kamal liossain and &irrisler Ainirul Islani told inc that Pakistan
Constituent .-lssemb/j' took nine Years to make a Constitution: the Assembl y had
to emplo y a huge time in law making. Considering this Pakistan case it was
decided that the Constituent Assembly of' l3anglades/i would not be given any
legislative power so that it could snake a Constitution without making any
unnecessa,y delay. But this logic is not at all tenable because it is ire// known to
all li/Ia Were associated with the political develop,nent and long ti/lie
Constitution making in Pakistan that the Pakistan Con.siitueni .'lssemhly's law-
making function was not (/11' of the reasons behind its unnecessary dela y in
('onsti:utioii-making. The main reasons it'ei'e folloii'ing (i) /'rohlem as to
determine the character of the Republic. It isas i j•v difficult for the fr amers a/a
Constitution Tom' Pakistan to produce an Islamic Constitution which could satisfy
144 Amendments of (lie Constitution of Bangladesh

di/ferent groups ho/cling divergent views regarding the structure and nature of
an Islamic State: (ii) (ontroi'ersv hetiieen Pakistan
E andWest Pakistan as to
quantum of representation in the Federal Legislature. This problem more than
an y other. dc/cued (o#istitiiiioii-iiiakiuig iii Pakistan: (iii,) Co,itiovei.sv over
language between East Pakistan and West Pakistan; (iv) Controversy he,'iieen
East Pakistan and West Pakistan regarding the distribution of polt'euv between
ledc'ia/ and the Provincial Governments: (v) and the last facto, fin dela y uas
caused b y the then Governor-General of Pakistan (b/am tloha,,iinad ii'ho
abrupily and almost iihunsical/i' dismissed the Constituent Assembly Just at if
time when it iias about to fInish its work. (For c/eta/is see. Chouclhury. G 11
Constitutional Development in Pakistan, ibid. l'P. 67 84)
t'one of these factors was present before the ('onstitution-makers in
Bangladesh. / do not find am reason iihich could Just' the denial of
Constituent .Isse,nh/vs legislative poiieu. The teal reason, as / think. la y with
itfulih himself and I found a trace of it in another occasion. in an informal
discussion with Professor Shanisu/ i/ucla Harlot and me ic/n/c / was assisting
him in his research iio,k l3arrister.1 nurul Is/omit told that returning to homeland
Alujib expressed his desire to change the cistern f,on, presidential to
parliamentaty one. The importmit issue in the meeting oil Januamdictated
b y .%mujih ii'a.c that the Constituent Asse,nh/v would neither he give!? legislative
pullet: nor an y power to control the cabinet. There SiltS 0 pin-drop silence in the
meeting. Because .t lu/ib who has like a demi-god among the people just arrived
in the country and is/tat thjih said and isanted oil moment could not he
opposed b y any one. But it iias on/v t It'. Amnirul Islam. as lie told who opposed
%fu/ih express/i Li/id he tried to make ilujih u,,der.stcind that before making the
dial! oft/ic l'moi'isional C omisti unonal Order a meeting of elected represen!ative
should he convened and it u'o,ilcJ he undemocratic if the Constituent :lssemh/v
iias not girdn the poiser of legislation. But .t Ii. Is/ant was stopped by saving-
"}oft are an inexpemiencedvoung maw What .&tiowled,ge do von keep about state
ministraon?" tlr. Main discovered himself as a stupid in the meeting since it
administration?"
ii'as on/v he ii-ho u'as express/v opposing and for his strong opposition he was
suspected on the pail of tin/lb to lead ci conspiracy to make Tajuciclin ;Ihnied
Pilate Minister tim. [slain also told that /1 uni then clay he decided to wind
UP himim.celft'omn politics.

Likewise, when Mujib said in the Constituent Assembly, "We could

declare martial law and could say-Emergency! No Democracy! No talk
for three years! No criticism will be allowed ... We had power to do so
but we did not do that ... The name of the opposition is being heard. I do
not know if there is any such party ... those who are doing the opposition
Constitution, Constitutional Law and Politics 145

are giving speeches just to see their names on headlines of newspapers,'

he was just attacking as well as prcvoking some of his people who once
titled him Bangabandhu. Nine mctths could not be passed since the
country achieved independence; there was nothing as opposition; Muiib
was a demi-god among his people; the whole nation was looking forward
to his leadership. But when he began to utter such provoking words
people began to be dismayed.

There are many speeches of Mujib like this which are full of wrath
and which virtually played the destructive role in Bangladesh politics.
Leadership without vision and education is a danger to democracy. This
substantiates that Mujib was not prepared to tolerate even the smell of
opposition and criticism against him. Mujib lacked the most important
quality of leadership in power-tolerance and sacrifice. Fie could not
tolerate those who were wiser and more experienced than he. That is why
he had a jealous look over both Tajuddin Ahmed and Ataur Rahman
Khan. 2 He turned the government machinery into a personal one man-
show; he would decide even small details, leaving no scope for a sound
administrative framework. His enormous personal power and his
intolerant personality went a long way in retarding healthy growth of
autonomous, independent and free institutions like the press and media
which are so vital for the working of a sustainable democracy. 3 As the
criticism and opposition began to grow against him, he, without making a
moments delay began to take resort to all kinds of brutal weapons like
emergency, preventive detention to crush down all criticism and
opposition and 'in the process he discarded everything Bangladesh was
supposed to represent-constitutionalism, rule of law, freedom of speech,
right to dissent, equal opportunity etc.4

Mujib was like a demi-god to pioneer a nation building. He was the

leader who had both power and people to give Bangladesh politics a
positive turn. Unlike in Pakistan there was no ethnic clash, no regional

Constituent Assembly Debate Vol-it, P. 700 & 704

Based on personal interview with Barrister Moinul 1-lossain.
Choudhury. Dilara. Ihid, P.216
' Mascarenhas. Anthon y. Ibid. P.20

10
146 Amendments of the Constitution of Bangladesh

problem in the starting of Bangladesh politics; there was no problem over

state language; there was no arbitrary power over the President to destroy
abruptly all initiatives of democracy as was done repeatedly in Pakistan;
there was no want of strong party system which is the backbone for the
success of democracy, for the AL party had strong organisational base
down to the village level.

Thus factually almost all favourable conditions for the success of

democracy were present in Bangladesh at its starting. But the leader did
not take opportunities of these conditions; he rather set the sail of
democracy on a wrong direction. In many emergent nations the process
of democracy and constitutionalism, after an initial rough sailing, have
been set on a flrin footing due to mature and pragmatic leadership. Again,
in most developing countries emerging from the bondage of colonialism
inherited fragile democratic institutions and the executive rulers of these
countries rule by mass appeal and through broad political power and as a
result, the rises of charishmatic leaders in these countries have been
common. The success or failure of charismatic leaders depends on how
they use their charisma. A charismatic leader can bridge the gap between
modernity and tradition by pushing institutional development'. In doing
this he has to relinquish his personal power in favour of
institutionalisation. He has to make a conscious choice between the uses
of arbitrary power and power to create institutions) This is a critical
choice which may set the future course of polity because individuals take
cues from their leaders or follow their examples. "At the birth of
societies, it is the leaders of the Commonwealth who create the
institutions; afterwards, it is the institutions that shape the leaders'. 2 And
only in very few cases of the developing countries where leadership of a
high order capable of creating and developing institutions was available-
generally in the person of the founder of the state - the country was able
to settle down under normal democratic institutions. 3 But unfortunately
in the case of Bangladesh the founding leader Sheikh Mujib had made the
choice for personal arbitrary power rather than institutionalisation of
democracy. The reality is that Mujib was not a far-sighted leader. He had

Hantiugton. SF. Political Development And Political Decay.

Quoted by Choudhury. Dilara. Ibid, P. 16
2 Montesquicu - quoted by Choudliurv. Dilara. Ibid, P. 16
Khan. Muhammad As-liar. Generals in Politics, (Dhaka: IJPL. 1988). 11.2
Constitution, Constitutional Law and Politics 147

the quality of a demagogue - a flimsy and egotistic man but not as a

constructive administrator. He had the quality to boast emphatically of
his being the Bungabandhu and the Father of Nation' but had no quality
of tolerance to hear any criticism about these. He had the quality to
pronounce big commitments but had no quality to work on consensus to
implement them. In most cases of vital policy making he did not consult
nor did take any advice from those of his colleagues who had liberal
trend in politics. 2 lie had the quality to give a quick response to the
toiling masses by his sympathetic speeches, to sob out the heroic story of
freedom fighters but no quality to share their feelings in his
administration. 'He promised everything but he betrayed everyone'.3
Almost all political crisis now confronting Bangladesh and hampering
the way to constitutionalism have got their unexpected start at the very
hand of Sheikh Mujib himself. 4 One commentator goes on to say that
'virtually Mujib was a dictator." I would say here that Mujib was a
dictator but he was not a constructive dictator rather he was a demagogue
a whimsical dictator, for a constructive dictator can go a long in bringing
efficiency within the administration in furtherance particularly of
economic development.

It is widely contended that Mujib was largely persuaded by the

conspirating faction of his party, particularly Khandaker faction. It is also
true that when he returned Bangladesh, he was given wrong information
both about the leader like Tajuddin Ahmed and the freedom fighters and
it was also fact that during the whole 9 months of bloody war he was not
in the country and he knew nothing what happened really in or who
supplied the real strength of war. But my question is-Was it completely

Unlike the term Bangabandhu which is a historical fact and on which nobody should
have any doubt the term 'Father of the Nation is debatable. Mujib may he called the
founder of Bangladesh but the terni Father of the Nation" as such is always far more
than a mere founder.
Sec. BBC Interview with Mr. Ataur Rahman Khan. Quoted by. Rahrnan. Sirazur.
Bangladesh Ffleen Years of Independence (in Bengali) (UPL. 1987). P. 27
Mascarenhas. Anthony. Ibid, P.] I
The author had interviews with some of Mujibs political colleagues who are still in
politics and other areas. All of them except two (MR. Akhter Mukul and Abdul
Mannan) told the author that Mu i ih had a dictatorial attitude and power expectation
was VC! y high in him. For M.R. Akhtcr Mukul and Abdul Mannan Please See P. 137
Dasgupta. Ibid, F. 73
148 Amendments of the Constitution of Bangladesh

impossible for Mujib whose boast was "It is Mujibur Rahman who knows
the best about the psychology of Bangalis and it is Mujibur Rahman who
can emphatically claim a Ph.d. degree on this subject, 1 " to discover the
real fact? What prudence and conscience did he apply to find the real
trend? In no way can I convince myself that a democratic leader like
Mujib, had he truly been so, who 4ad all executive power would always
be persuaded by a conspirating faction and would take wrong decisions
one after another pushing the counry into a point of no return. He was
repeatedly informed and warned about conspiration and corruption. 2 But
he did not pay a heed to those warning.

Mujib personally did not entangle himself in any corruption. Surely

he was the Bangabandhu, a true friend of Bangalis; "his emotional
behaviour reflected the life style of the Bengali nation and lie combined
in himself all the characteristics of a Bengali'. But all this is what Mujib
was as a person- a Bangabandhu-which has nothing to do with state
administration.

Someone still goes so far as to say that Mujib introduced one party
dictatorial system for a temporary period just to get out of the political
chaos and to uproot corruption and he had a mind to get back to
democratic system again. 3 He told his part) MPs "give me only 3 years
time; I will uproot corruption and then get again back on the right track
of democracy." 4 However, Mujib's performance does not prove so.
Neither the 4th Amendment itself nor in his speech justifying the 4th
Amendment indicated that the change was temporary. What really
induced Mujib to introduce a constitutional monolithic system? A
commentator says." perhaps Mujib could foresee that the disenchantment
in the opposition camp might one day generate an irresistible mass
upheaval against his regime by capitalising on gradual erosion of his
personal charisma and ineffectiveness of his government and
administration in responding properly to the aspirations of the people. As
a cautionary measure he eradicated all organised political opposition to

Based oti personal interview with Barrister Amir-til Islam.

• .)as.
Gupta. Shukhranjan r ibid. P.74
Mia. M.A. Wazcd Some Events around /3an ,gabandhu Sheik/i %lujib and Bangladesh.
Ibid. PP. 220. 229.
Based on Personal interview with Barrister Amir-Ul Islam.
Constitution, Constitutional Law and Politics 149

his regime. It thus became clear that perpetuation of power was the
dominant motive behind the fourth constitutional amendment. 1 And this
is clearly manifested when we see that under the 4th Amendment
provision was made so that one could continue as a President for life.

MUJIB'S SECOND REVOLUTION AND ITS

UNFINISHED PROSPECTS
Oil basis of Mujib's activities, programmes and speeches
commencing from the date of 4th Amendment till 15th August, 1975 his
concept of 'Second Revolution' may he categorised as having following
four dimensions:
1. Constitutional or base Dimension given effect by the 4th
Amendment itself.
2. Political and Philosophical Dimension which was to he
implemented through BAKSAL.
3. Administrative Dimension which was to be implemented through
the President and his Ministry at the centre level, District Council at
District level and Thana Council at the lowest level.
4. Economic Dimension which was to be implemented through
Compulsory Multipurpose Co-operatives.

The constitutional dimension has already been discussed in detail.

Here I will discuss the other three dimensions of the 'Second Revolution'
because every future generation will try to know what was in the mind of
Bangabandhu to implement his Second Revolution' and how far it bore
prospects for the greater interest of the nation. Since none of the last 3
above mentioned dimensions could be implemented before Mujibs
killing someone still says that if Mujib could implement BAKSAL and
other administrative refbrms, he would have been able to uproot
corruption and set the state administration in right direction. But I do not
see any sign of improvement in the new system because of following
observations.

First, as mentioned earlier the various provisions of the 4th

Amendment necessarily indicate that it was a stern measure taken to
perpetuate autocratic rule and not to proceed to do any material benefit to

takim. Muhammad A. i/ic Sa/iabudcl/n In!eriegiium, ibid. nil'. 72

150 Amendments of the Constitution of Bangladesh

people; a sinister looking intention worked behind the Amendment

althrough.

Second, those who were mostly associated with corruption and

smuggling were retained in power; rather who were efficient and of
liberal attitude were removed from the real power of the administration.
'Mujib's 'Second Revolution' lost its weight when it was revealed that
most of the fifteen members of the all-powerful Executive Committee.
excepting one, were Mujib's close associates and relatives."' Though
Mujib promised in his 'Second Revolution', democracy far the
Sarbohai'a,r (have-nots), Mulib still depended oil same old Awami
Leaguers who were discredited as corrupt and incfficent: and these same
corrupt Awami Leaguers were now members of I3AKSAL who,
therefore, were not Sarhohuras : they were all new rich class who
benefited in the three years of the AL. rule and could not Mil the support
from the real Sarbo/2aras. 2 So the instrument Mujib use:1 for [he
revolution was hardly revolutionary. It was to he a revolution far
Sar/oharas but no Sai-ho/iw'a was given chance to run the instrument of
revolution: it was actually a kind of political bluff in the name of
revolution. Ii was this reincarnation ol' Awami Leaguers in the new brand
of F3AKSAL to realise the revolution which kept the ordinary people still
in the state of uncertainity and fear.

Third. the new system did not do away with the AL factions. It
accommodated them and added a few mole. As there was no channel for
constitutional opposition. factional fight within the regime could be
expected to intensify and if that happened. the government would
continue to remain ineffective under the new system.3

Fourth. though Mujib said that he introduced one party to ensure

national unity, it was impossible to bring such unit y by force. But Mujib
proceeded to do it by force when he declared that no person could
continue to be a member of parliament unless he joined the BAKSAL

Chudhury, L)ilara. Ibid, P. 52

2 Jahan. Rounaq, Ibid, P. 52
3 .Iahan. Rounaq. /hd, P. 122
Constitution, Constitutional Law and Politics 151

within a fixed time. In seeking national unity Mjih did not go beyond
his boundary. Nor did he make any honest and sincere effort to bring all
the political forces together. Although hundreds and thousands of people
at individual or group level from different walks of life began to join the
new party, no national convention or meeting of the representatives of
other political parties or groups was convened, nor were they taken into
confidence. Although some individual members of JSD and the NAP also
joined the new party, their party hierarchies kept aloof from the
bandwagon. So the style of forging national unity was somewhat erratic.
Muj ib did not make any sincere attempt to bring about a formal unity of
all the political parties or forces in the country 1 . Thus iii a more
significant way, BAKSAL was meant to serve the purpose of the
Bangabal7dhu's personal dictatorship, not the cause of national
development and unity.'2

Fifth, the economic dimension of the 'second rcvolution was to be

implemented through compulsory multi-pLirpose cooperatives. But to
make such a multi-purpose cooperative system success it necessarily
needed, particularly in a system where judicial control was done away
with.a large number of devoted and oath-bound workers and officers
who could work relentlessly with the spirit of revolutionary socialism
sacrificing even their personal interests. But no such plan to select such
comrades was at the hand of Muj ib; he wanted to lead his so-called
'revolution' with his Awami Leaguers who were greedy, selfish and
expert enough to exploit the toiling masses. This is why the people were
in a state of confusion what the new system would bring about. Although
M u l ib repeatedly promised that land ownership would he left intact.
surplus farmers feared that compulsory co-operatives were a prelude to
state ownership of land.3

Sixth, as to the administrative reform he wanted to introduce, I would

argue that Mujib had lack of knowledge over state administration. He
wanted to keep in him the total political control. But in a country with
vast population this is quite impossible. He thought that the President

Ahmed. Moudud. Ibid. P.248

2 Ziring. Lawrence. Ibid, P. 105
Jahan, Rounaq, Ibid. P. 135
152 Amendments of the Constitution of Bangladesh

should play the role of a referee but that is a foolish thinking particularly
in state administration. Because the role of a referee is possible only
Within the four corners of a limited field where the eye-sight can catch
any wrong. But in a state administration where policy formulation and
implementation take a complex course in various dimensions at various
governmental departments which are far beyond the Presidents reach and
where the President himself will be refere J by other organs like
parliament etc., he cannot play the role of an umpre and thinking for
such role disregarding other controlling institutions of democracy would
certainly lead the country into a field of uncontrolled corruption, chaos
and nepotism. Actually in state administration there should always be
more than one referee to maintain discipline and efficiency within an
entire administration. The first one is an independent judiciary; the
second one is parliament; the third one is a strong committee system in
parliament; the fourth one is department of an Ombudsman, the fifth one
is a free press and media. If these referee-like controlling bodies are not
allowed to work independently to monitor the activities of the
government one can only retain a rule of tyranny as was done by Hitler or
other military dictators.

However, with the establishment of one party rule Muib declared a

thorough overhaul of the administration uprooting the 200 year-old
British administrative chain. The whole country was now divided into 62
districts, each under a governor. The governors were given enormous
power. They were entrusted with development, planning and
implementations, administration and judiciary. They were even
responsible for the maintenance of law and order in their respective
districts. All of them were to maintain direct communication with Sheikh
MLLjib and take orders from him. One commentator says that in this new
set-up two things were very clear. Firstly, the Dhaka Secretariat was
virtually left without any real power; and secondly, the power had been
shifted overnight from the cities to the country side. Thus the power of
both the traditional bureaucrats, ministers and MPs who were the most
corrupt in his administration were curtailed.'

!)asgupla. Sukhranjan. Ibid. 11.37

Constitution, Constitutional Law and Politics 153

Thus one may say that Mujib now really set the sail to the right
direction to bring efficiency in and to uproot corruption from his
administration for the better welfare of the people and nation. But I do
not find any positive merit in this change because of the following
reasons:

(a) The administration of the district was now vested in a politically

appointed governor as opposed to an earlier bureaucrat like District
Magistrate or Deputy Commissioner. Thus he was to appoint now the
same party-men or MPs and one was not sure that they would be above
corruption.

(b) As the District Governors were now at the second stage of the
administration i.e. after the President and his cabinet, they now.
therefore, took the place of Ministers and Secretaries. But since Mujib
could not introduce effective control over his ministers earlier, how could
he now be sure that this time he would be able to take effective control
over the governors?

(c) Since the whole administration of the entire district along with
planning and policy-making was vested in the governors and since the
Dhaka-based bureaucracy was to go at the district level, the departments
of governors would have surely turned now into 62 bureaucracies in the
whole countr y . While Mujib could not control the centralised
bureaucracy headed by some Ministers who were always within his eye-
sight it was quite impossible for him to keep an watchful eye over 62
district bureaucracies.

(d) Mujibs landlord style of politics was not at all adaptable to this
plan also since he was to discharge now huge responsibilities which in
the earlier administration could be left to his ministers.

(e) One might, of course, argue here that since Mujib decentralised
administration into three tiers—Centre. District and T'hana level through
representatives of BAKSAL, he had an avowed intention to introduce the
concept of local government. But his mechanism never comes under the
154 Amendments of the Constitution of Bangladesh

democratic concept of local gvoernment. Because (i) the entire chapter III
of part IV of the Constitution dealing with Local Govenment' was
deleted by the 4th Amendment. Aslo the democratic provisions of
effective participation by the people throuch their elected representatives
in administration at all levels shall he ensured as inserted in Article II
was deleted. If he had honest thinking in decentralisation of
administration in the form of strong and effective local government,
certainl y he would not abolish the Constitutional provisions of local
government; (ii) the District Governors were to be appointed by Mujib
himself and not to be elected directly by the people. Again, since the
District Administrative Council would function under the direct control
Of Muj lb and any time Muj ib could remove the governor, it was not in
any sense a democratic local government. It was, therefore, a type of
authoritarian or colonial dccentralisation in the sense of local government
though Mu jib went on to sa y this system as a people oriented
administration: (iii) Local government bodies should always be
autonomous bodies but no such position was allowed to be in the
BA KSA L-oriented decentralisation.

(f) Since Governors at every Disirict was made the chief executive
and centre figure in the functioning of the District administration and
since he was now directly responsible to the president. it was not clear
what his ministers would do now. In this regard Mujibs statement made
Oil 19th June 1975 is not clear what lie actually meant.

(g) Since governors were now under only central control of the
President and since also the judicial administration was made subservient
to the governor and since the Supreme Courts powers and independence
were completely curtailed, it was not clear where the ordinary citizens
would go to have their i'edresses and grievances against the governor and
his administration settled. Was it possible for ordinary people to conic to
the President to file their cases against the governor and his
administration? It was also not clear how the President himself being in
the realm without free press and media would get information as to
irregularities and maladministration of the governor and his departments?
Again. in the absence of such information was it possible for him to
retain effective control centrally over the 62 District Governors and their
departments? In such a situation he, by his policy of retaining complete
Constitution, Constitutional Law and Politics 155

control, could only make order to execute or implement his dictation but
it was impossible for him to know whether the implementation was made
duly—whether the ordinary people of his Sonar Bang/a (Golden Bengal)
really received any benefit from newly created administration.

Actually Mujib had, as his activities prove. inherent lack of

knowledge about institutions of democracy and particularly of knowledge
how to operate democratic institutions. In any system, be it parliamentary
or presidential one, there is and must be s y stem of checks and balances
and particularly the courts work as the I time watch-dog against the
irregularities of the administration from top to the bottom of the system.
A huge number of bureaucrats and actions taken by bureaucracy cannot
be scrutinised by one President. Effective control over the administration
is ensured through the working of some important institutions of
democracy. Firstly, if any maladministration or irregularities occur, the
affected people will go to courts where all the administration is bound to
justify their actions and their grievances settled; and the wrong-doing
administration will get even punishment. Secondly, administrative
control over top bureaucrac y i.e. Secretaries and Ministers are effectively
ensured through strong committee system in the parliament both in
parliamentary system and presidential system. Thirdly. a department of
Ombudsman also keeps an all time watchful eye over all types of
maladministration. Fourthly, a free press gives information to the public
about various negative and positive aspects of the government policies,
laws and activities; as a result, both general people and other agencies
can he aware both of their own rights and administrative efficiency and
sincerity. On the other hand, government itself may know about
efficiency of its various departmental administration and also the
feedback from the people and may take, at its own initiative, appropriate
measures in cases of maladministration or irregularities or correctify its
policies; also other voluntary agencies like NGO's get channels to act so"
mo/u or otherwise against various inefficiency and irregularities of the
government departments. Thus the openness and transparency occurs in
the government activities; government becomes more responsive and the
people can have their rights enforced. But in the new system Mujib
completely curtailed the independence of all democratic institutions; he
amputed the whole judiciary and made it sLibservient to his
administration; he turned the parliament into a secondary rubber stamp
body; he never allowed the committee system to work; he stopped the
1 56 Amendments of the Constitution of Bangladesh

free press; lie stopped political liberalism. In such an environment he

could administer tyranny only. So the problem did not lay with the
system; problem lay with him since lie did not allow from the very
beginning the basic institutions of democracy to work. A commentator
has made a similar observation," if we examine what actually led to the
collapse of the economy, breakdown of law and order in the country and
rise of organised smuggling and corruption, it will be found that the
system had a secondary role to play and the leaders and the party had the
primary role in creating such a situation'.

Apart from what has been stated here. Mujib did not come forward
with any other concrete economic or social programme: he did not spell
out how the domestic resources were going to be increased, how the
standard of living of the people would improve, how discipline would be
restored to in the nationalised industries, how vices like corruption, black
marketing and hoarding which were crippling the economy of the country
were to be checked. how the organised looting, smuggling, sabotage and
secret killing was to come to an end.2

FIFTH AMENDMENT
Background
In a military coup led by a group of army officers Mujib was killed
brutally along with his family members on 15th August, 1975. With his
killing his new system of one party BAKSAL had gone. The first martial
law regime got its firm start in Bangladesh governance which continued
till 6th April, 1979. Though martial law was declared on 15th August,
1975 the Constitution was not abrogated; it was kept alive in
subordination, though it was the supreme law which allowed no means of
martial law, of martial law. The Constitution was changed several times
by various martial law proclamations and orders. From the constitutional
point of view all these changes to the Constitution were illegal, for the
Constitution did not allow such a process of amendments;
constitutionally it is the only body parliament which can amend the
Constitution. However, the martial law was declared and the Constitution
was amended in an extra-constitutional way which has been a frequent

Ahmed. Moudud, Ibid, F'. 250

2 Ahrncd, Moudud, Ihid, P 250
Constitution, Constitutional Law and Politics 157

phenomenon in politics of developing countries with new start of

democracy. The second parliamentary election was held in 1979 while
martial law administrator Zia's party secured a two-third majority. The
first session of the parliament was convened on 1st April, 1979 and on
6th April a constitutional Amendment Act (5th Amendment) was passed
which legalised all the activities of the martial law government made and
done during the period between 15th August, 1975 and 9th April, 1979.
The Act amended the 4th Schedule to the Constitution by an addition of
new paragraph 18 thereto which provided, inter alia, that all amendments,
additions, modifications, substitutions and omissions made in the
constitution during the period between the 15th August, 1975 and the 9th
April, 1979 by any Proclamation or Proclamation Order of the Martial
Law Authorities were ratified and confirmed and were declared to have
been validly made and would not be called in question in or before any
court or tribunal or authority on any ground whatsoever. Through four
major Martial Law Proclamations and various Proclamation Orders made
there under the Constitution was amended several times according to the
wishes of the Martial Law government. After the 5th Amendment Act
was adopted the overall Constitution came to be a different one, though
not completely an uprooted one, from one introduced by the 4th
Amendment.
Changes made by the 5th Amendment
The 5th Amendment brought about, inter alia, the following
important changes in the Constitution.
1. Part VIA of the Constitution dealing with one party system as
introduced by the 4th Amendment was omitted.
2. The independence of judiciary which was completely destroyed by
the 4th Amendment was restored partially (Articles 96 and 116).
3. The jurisdiction of the High Court Division of the Supreme Court
to enforce fundamental rights was restored to its original position as was
in the original constitution (Article 44 and 102).
4. Provision of Supreme Judicial Council in respect of security of
tenure of tile judges of the Supreme Court was inserted (Article 96).
5. The provision of absolute veto power of the President introduced
by the 4th Amendment was abolished (Article 80).
158 Amendments of the Constitution of Bangladesh

6. Provisions of referendum in respect of amendment of certain

provisions of the Constitution was inserted and to that end a new clause
IA was created in Article 142.
7. Religious words "Bismillahir Rahmanir Rahirn' was inserted in the
beginning of the Constitution i.e. above the preamble.
8. In the original Constitution it was provided in Article 6 that the
citizens of Bangladesh would be known as 'Bangalees'. But this was
changed and it was provided now that citizens would be known as
'Bangladeshis'.
9. One of four major fundamental principles of state policy
'secularism' was omitted and in its place a new one the principle of
absolute trust and faith in the Almighty Allah was inserted (Art. 8).
10. One of four major fundamental principles of state policy
socialisn was given a new explanation to the effect that socialism would
mean economic and social justice (Article 8).
11. A new article 145A was created where it was provided that all
international treaties would be submitted to the President who should
cause them to he laid before parliament.
12. Another new Article 92A was created whereby the President was
given power to expend public moneys in certain cases.
13. Article 58 was amended to the effect that four-fifths of the total
number of ministers should he taken from among the members of
parliament. It was also provided that the President would appoint as
Prime Minister the Member of Parliament who appeared to him to
command the support of the majority of the members of parliament.

Merits of the Amendment

To compare with the 4th Amendment the 5th Amendment introduced
some important democratic provisions to pave the way, albeit in a limited
sphere, for constitutionalism.
Firstly, dictatorial one party system which had been a permanent
block to constitutionalism was abolished and multi-party democratic
system as was adopted in the original Constitution was restored which
again opened the door of liberal democracy and constitutionalism.
Secondly, all fundamental rights which were reduced into
meaning less versions of the Constitution were now again given their full
Constitution, Constitutional Law and Politics 159

life and enforcement by reverting Article 44 of the Constitution to its

original position of 1972.

Thirdly, the independence of judiciary specially the constitutional

status and sanctity of the Supreme Court was restored. Though the
unhealthy provisions introduced by the 4th Amendment relating to
appointment of judges were left untouched, the provisions for security of
tenure which is the first and the most important condition of
independence Of judiciary was restored by providing a healthy device of
Supreme Judicial Council. Moreover, in respect of control including the
power of posting, promotion and grant of leave and discipline of the
subordinate judges and magistrates which was vested absolutely in the
President under the 4th Amendment, it was provided that the President
Should exercise that control in consultation with the Supreme Court.
Thus constitutional aspect of independence of both higher and lower
jLldiciary was restored.

Fourthly, the undemocratic provisions of absolute veto power of the

President introduced by the 4th Amendment were abolished. Thus the
democratic principle of check and balance between the President and the
parliament particularly in the matters of law-making was restored.

Fifthly, insertion of the provision of referendum in respect of certain

important provisions of the Constitution is a healthy one. Because it now
provides a check on the parliament to make any abrupt but fundamental
change in the Constitution overnight as was done by the 4th Amendment.
Now a party even with two-thirds majority in the parliament will have to
think twice before making a fundamental change in the Constitution.

Demerits of the Amendment

Firstly, as regards the composition of the parliament, the number of
reserved seats for women was increased from 1 5 to 30 and the period this
provision was to remain in force was extended from 10 to 15 years. This
provision enabled the Zia Government to manage two-thirds majority in
the parliament. On the other hand, this provision undermined the spirit of
160 Amendments of the Constitution of Bangladesh

representative government in Bangladesh, for these reserved seats of

women members in the parliament works as a balance of power and the
ruling party in the parliament uses them as tools to satisfy their
undemocratic political purpose)

Secondly, this Amendment inserted a new Article 145A relating to

international treaties. 11 provided that all treaties with foreign countries
should be submitted to the President who should cause them to be laid
before parliament but there was a significant sub-clause that 'no such
treaty should be so laid if the President would consider it to be against
the national interest so to do. This proviso has virtually curtailed the
parliaments power in relation to international treaties, for it actually
armed the President with dictatorial power to take decisions in matters of
international treaties ignoring the parlian'ient. In a true presidential
system as it exists in the USA the President cannot make any treaty
without the approval of the parliament.

Thirdly, a new Article 92A was created by this Amendment and this
Article curtailed the parliament's power over the financial matter and the
President was given power to get money from the Consolidated Fund and
to expend it without the parliament's approval. In a true presidential
system as it exists in the USA the parliament exercises the supreme
controlling power over the public money. The US president has no power
to expend even a penny from the public purse without the approval of the
Congress. "This curtailment of the power of the legislature in matters of
finance was, therefore, a serious set-back in the evolution of
constitutionalism and democracy in Bangladesh."2

Fourthly, religious words 'Bismillahir Rahmanir Rahim' were inserted

in the beginning of the Constitution i.e. above the preamble. This was
done necessarily with a political end. It was a constitutional tricks played
by Zia especially to get quick blind support fonn a large section of people
who are religious but politically unconscious. Likewise one of four major
fundamental principles of state policy 'secularism' was omitted and in its

See Iurthci'. Chapter XVI

Choudhury. I)Uara. i/mi. P. 130
Constitution, Constitutional Law and Politics 161

place principles of absolute trust and faith in the Almighty Allah' was
inserted. This was also done with the same political end.

Fifthly, in the preamble the words, 'historic struggle for national

liberation' were replaced by words 'historic war for national
independence.' Thus the spirit of the struggle which continued for long
24 years against Pakistani colonialism and exploitation, the growth and
role of political parties and political leaderships, the role of cultural
workers, intellectuals, teachers, students and professional groups and that
of common people were undermined, ignored and concealed. The army
factor in the 1971 liberation struggle was only brought into prominence
though the war, in most cases, was fought by the common people"]

Nature of the Governmental System

after the 5th Amendment
The above discussion makes it clear that the 5th Amendment actually
modified and somewhere liberalised the relations among the institutions
of the government introduced by the 4th Amendment. It did not change
the fundamental structure of the constitution as introduced by the 4th
Amendment. Nor did it make the whole system a democratic one to pave
the full way for constitutionalism. And also that cannot be expected
particularly from a military government who comes to power completely
in an illegal way. The governmental system as it stood after the 5th
Amendment was neither a true presidential system as is practised in the
USA nor a parliamentary one as is practised in the UK. Neither was it the
same presidential system as is practised in France where the Prime
Minister and his cabinet are collectively responsible to parliament. 2 The
presidency as i.odified by the 5th Amendment was much more powerful
than the presidency under the French Constitution. It was really a class
apart, an all powerful executive ridden presidential system which armed
the President with all devices to administer his dictatorial rule. This
model bore similarities to that of Ayub Khan of Pakistan. The executive
authority was vested with the president, who was directly elected by the
people for a period of five years although without a limit to the number

l Hasanuzzamman, Search for a New Dimension. (Dhaka: Pallab Publishers. 1992). P.

19
2 Choudhury. Dilara, Ibid, P. 61

11
162 Amendments of the Constitution of Bangladesh

of terms in office. Once elected it was quite impossible to remove him

from office, for the impeachment procedure as introduced by the 4th
amendment was unprecedentedly a difficult one. The Amendment also
did not repeal any of the extra-ordinary constitutional devices like
emergency, ordinance making, preventive detention etc. through which
the president was capable of exercising almost dictatorial power. The
President was also the chief legislative initiator through his power to
address and power of dissolution of parliament. Also the power of the
parliament was kept restricted in many important cases. Zia's system was,
therelore, neither a fully democratic responsible government; nor was it
an ever hated one party dictatorship as introduced by Mujib. It was a
multi-party presidential system blended of democratic and autocratic
features.

SIXTH AMENDMENT
On May 30, 1981 President Zia was brutally killed in an unsuccessful
army coup. On his death Justice Abdus Sattar, the then Vice-President
assumed the role of Acting President. Under Article 123 of the
Constitution the presidential vacancy caused by death was to he filled by
an election within 180 days of the vacancy occurring. Acting President
Sattar was nominated by BNP as a presidential candidate in the election.
But a constitutional problem arose respecting the method of Sattars
nomination, for the Constitution did not permit him to contest the
election as he was holding an office of profit. Under Article 50 of the
Constitution the President could appoint Vice-President any person
qualified for election as a member of parliament. Under Article 66 (dd) a
person would be disqualified for election as a member of parliament if he
as holding an office of profit in the service of the Republic other than
an office which is declared by law not to disqualify such holders. There
was no law stating that the office of Vice-President was not an office of
profit. On the other hand, under Article 66(2A) some persons were
exempted from holding an office of profit—such as Prime Minister,
Deputy Prime Minister, Minister, Minister of State and Deputy Minister.
It was, therefore, clear that the office of the Vice-President continued to
be an office of profit and this debarred Sattar from contesting in the
election. To overcome this problem. on July 1, 1981 a Bill called the
Sixth (Constitution Amendment) Bill was introduced in the House. On
8th July the Bill was passed which now enabled Sattar to contest the
Constitution, Constitutional Law and Politics 163

election without resignation from his office. This Amendment amended

Articles 51 and 60 excluding, inter alia, the office of 'President, Vice-
President. and Acting President free from being office of profit. This
Amendment was, therefore, made to face a real situation. No sinister-
looking political purpose worked behind it.

SEVENTH AMENDMENT
After the brutal killing of Zia the presidential election was held on
15th November, 1981. Justice Abdus Sattar, the then Acting President
and nominee of the ruling party BNP won a landslide victory and became
the next President of Bangladesh to Zia. But in the early hours of 24th
March, 1982, 128 days after the presidential election was held, a military
intervention led by Hussain Muhammad Ershad, the then Chief of Army
Staff took place. This is known as the bloodless coup of March, 24.
Through this coup Ershad seized power ousting Sattar. Martial law was
declared for the second time in Bangladesh; parliament was dissolved;
the Constitution was suspended and political activities were banned.
Ershad first assumed the office Chief Martial Law Administrator and he
' nominated Justice Ahsan Uddin Chowdhury as a phantom president.
Later on Ershad assumed the offices of both CMLA and president.
Ershad kept martial law in force for four years and seven months
beginning from 24th March, 1982 to 11th November, 1986- On 11th
November, 1986 the Seventh Amendment to the Constitution was passed
in the third parliament. By this Amendment Ershad's seizure of power in
1982 and his long term action as CMLA were legitimized. In the Fourth
Schedule to the Constitution a new paragraph 19 was added which
provided, inter alia, that all Proclamations, Proclamation Order, CMLA's
Order, Martial Law Regulation Order, Ordinance and other laws made
during the period between 24th March, 1982 and the date of
commencement of the Constitution (7th Amendment) Act, 1986 had been
validly made and would not be called in question in or before any court
or tribunal or authority on any ground whatsoever.
It is important to mention here that Ershad, unlike his two
predecessors Mujib and Zia, did not, through this 7th Amendment, make
any major constitutional changes. The reason behind may be that what
constitutional structure Zia left was very much in favour of maintaining
Ershad's dictatorial rule. He inherited a system with all powerful
dictatorial executive and a rubber stamp parliament, which in no way
164 Amendments of the Constitution of Bangladesh

hampered rather it helped to the continuation of limited or controlled

democracy.
Except the ratificationclause in the 4th Schedule the 7th Amendment
amended only one article and it was Article 96 where the age of the
Supreme Court judges was increased frorn 62 to 65 years.

EIGHTH AMENDMENT
The Constitution (Eighth Amendment) Act was adopted by the
Fourth Parliament on 7th June, 1988. It introduced the following changes
in the Constitution:
1. The word 'Bengali' was replaced by the word 'Bangla' in Article 3
of the Constitution.
2. The word 'Dacca' was replaced by the word 'Dhaka' in Article 5 of
the Constitution.
3. A new Article 2A was created where it was provided that 'the state
religion of the Republic is Islam but other religions may be practised in
peace and harmony in the Republic."
4. Two sub-clauses [30(1) & 30(3)] of Article 30 were omitted. Now,
therefore, there remained no bar for the state to confer title, honour or
decoration.
5. Articles 100 and 107 were amended and provisions were inserted
for setting up six permanent Benches of the High Court Division outside
Dhaka. Judiciary was, therefore, decentralised. But this part of the
Amendment was challenged in the Supreme Court and the Appellate
Division of the Supreme Court in the historic 8th Amendment case
nullified the same as unconstitutional.

It is needless to say that this Amendment was done not to face any
real situation; a sinister-looking political purpose of Ershad worked
behind this Amendment. Though Ershad legalised his seizure of power
and long time actions as CMLA through an elected parliament, he was
not treated as legitimate ruler by the opposition. The opposition from the
very beginning began to, look upon Ershad's attempts with suspicion.
There was continued movement against his regime. On the way to subdue
this continued movement, he first, as a follower of Zia, took the religion
'Islam' as a handy weapon to use it as a posture of his activities so that he
could gain the support of the largest section of illiterate population who
Constitution, Constitutional Law and Politics 165

are religious but politically unconscious. To that end in view he inserted

'Jslai'n' as the state religion in the Constitution through the 8th
Amendment. As a commentator says, frustrated by the failure to acquire
legitimac y through electoral process, the regime resorted to widen its
support-base by exploiting the religious sentiment of the country's
overwhelming majority of Muslim population. Because of the marginal
representation of opposition in parliament and its leader known
throughout the country as 'loyal opposition leader' the bill caused more
uproar outside the parliament than inside it. Almost all major opposition
parties, including the ones propagating Islamic dogmatism opposed the
Amendment Bill, It was opposed on such grounds as: (I) the bill was
politically motivated; (ii) the amendment would constitutionaily divide
the nation into majority and minority; (iii) it would have bad impact on
the communal harmony in the country; and above alt, (iv) the parliament
itself was illegal and therefore, had no moral right to amend the
constitution.]

NINTH AMENDMENT
This Amendment was passed on 10th July 1989 and it became a law
on 11th July. But it was to come into effect on 1st march 1991. This
Amendment amended Articles 49, 50, 51, 53, 54. 72, 119, 122, 123, 124,
148, 152 of and 4th Schedule to the Constitution. It also inserted a new
article 53A in the Constitution. It introduced some important changes in
the Constitution. Most significant features of this Amendment were
following;
I. Provision for direct election for the Vice President.
2. Provision for the election of the President and Vice-President
simultaneously.
3. Both President and Vice-President were to hold office for a term of
five years.
4. No person was to hold office as President or Vice-President for
more than two terms; whether or not the terms were consecutive.
The Amendment, therefore, sought to democratise the executive. But
it carries no importance now for the 12th Amendment which reverted the

1-lakim. Muhammad A, Bangladesh Politics The S'ahahuddin Interregnum, (Dhaka

UPL, 1993). I'. 31-32
166 Amenuincitis ui tue Lonstitution of Bangladesh

governmental system to a parliamentary one has made all its provisions

ineffective.

TENTH AMENDMENT
This Amendment was passed in the 4th parliament on 12th June,
1990. it mainly related to the reserved women seats in the parliament as
provided for in Article 65.
The original Constitution provided for 15 reserved seats for women
members and this provision was to remain in force for 10 years. But in
1979 through the 5th Amendment the number of reserved seats was
increased form 15 to 30 and the period this provision was to remain in
force was extended from 10 to IS years. This period expired on 10th
December 1987 and as such the 4th parliament did not have any reserved
women seats. There were, therefore, debates and discussions within
Ershari's ruling party whether such a reservation was necessary or
desirable. The mode of election for the women's reserved seats and their
role in the parliament had prompted a weekly to term these 30 ladies as
'30 sets ornaments in parliament') However Ershad and his ruling party
decided to keep such reservation for another period of 10 years. To that
end the Constitution (Tenth Amendment) Bill was introduced on 10th
June and passed on 12th June, 1990. This Amendment reinserted clause
(3) to Article 65 providing for 30 reserved women seats for a further
period of 10 years beginning with the commencement of the next
parliament (i.e. from the 5th April, 1991 which was first day of the 5th
parliament. Certainly this Amendment was done with political purpose,
for as mentioned earlier, these reserved seats work as a balance of power
or a vote-hank in the parliament. 2 Therefore the 5th and 7th parliaments
had 30 indrec1iy elected women members. However, the 10 years period
expired with the expiry of the 7th parliament and hence the 8th
parliament does not have any reserved seats for women.
On 16 May. 2004 the 8th Parliament passed the Constitution
Fourteenth Amendment Act whereby provisions have been made for 45
women members in reserved seats for another ten years starting from the
8th parliament (See 14th Amendment below).

Weekly Jai Jai Din'. 2nd year. No 2, July 29, 1986

2 For details, see, chapter XVII
Constitution, Constitutional Law and Politics 167

ELEVENTH AND TWELFTH AMENDMENT

Background
As mentioned earlier the armed forces under the leadership of
Ershad, the then Chief of Army Staff, overthrew the Sattar government in
a bloodless coup on March 24, 1982. Under this second military rule in
Bangladesh Ershad came to power and he remained in power for the
longest period- 8 years and 9 months. But with the passage of time the
intensity of anti-regime movement increased. Throughout his rule, the
issue which haunted Ershad was the question of his legitimacy to govern
the country. 'His hand picked political party and fraudulent parliamentary
elections of 1986 and 1988 and Presidential election of 1987 were looked
upon as attempts to apply a democratic vaneer in order to continue his
autocratic rule'.' The government was convinced by the intensity of the
opposition movement that for its survival parliamentary elections were
unavoidable. Election was held on 7th May, 1986. Some parties in the
AL-led alliance contested in the election. But BNP-backed alliance
boycotted it. To be mentioned here that during Ershad regime the election
process in Bangladesh became a total farce and mockery. Through
unprecedented electoral malpractice Ershad destroyed the electoral
process in the country.

Ershads rule particularly from November, 1987 faced a serious

challenge from the opposition. The parliamentary election of March,
1988 was a watershed in Ershad's rule. In the face of mass-boycott by the
major opposition parties the government resorted to such unprecedented
election manipulation that a British newspaper openly termed it as 'lies
and cheating in the Dhaka poll booth. 2 The fourth parliamentary election
actually further deepened the legitimacy crisis of Ershad government.
The anti-regime movement reached its peak. People could not be stopped
through killing, arrest and torture. Continuous movement reached its
climax in 1990 when 22 major student organisations formed the All Party
Students Unity (APSU) and vowed to continue their agitation until the
country was emancipated from the clutches of autocratic Ershad and his
regime. Moreover, all three main alliances (AL-led Eight party alliance,
BNP-led seven party alliance and the left-leaning five party alliance) and

Choudhury. Dilara. Ibid, P. 76.

2 Choidhury. Dilara, Ibid, P. 77.
168 Amendments of the Constitution of Bangladesh

Jamat-i-lslarni bridged their differences in order to unseat Ershad. On

November 19, 1990 all three alliances forged a common platform and
signed a joint declaration that outlined the formula of transition from an
autocracy to democracy. The famous four points of this joint declaration
were following-
i) The 15-party alliance, the 7-party alliance and 5-party alliance would
not take part in any election held under the illegitimate Ershad government.
They would not only boycott such election but also would resist all elections
under Ershad. They would participate only in an election to a sovereign
parliament and only when such an election is held under a non-partisan,
neutral government.
ii) With a view to establishing genuine democracy Ershad and his
government would have to resign. Before resigning Ershad would appoint a
person Vice-President who would acceptable to the three alliances and
Ershad must hand over power to this Vice-President.
iii) An interim care-taker government would be formed under that Vice-
President and its responsibility would be to ensure holding of a free and fair
election to a sovereign parliament within 3 months.
iv) The interim government would hand over power to a sovereign
parliament elected through free and fair election.

This joint declaration was a milestone in the movement for

restoration of democracy. Because now strengthened by this common
formula as agreed by all the opposition political parties the anti-Ershad
movement gained momentum and an institutionalised coordinating body
of the movement got its way to proceed to a point of no return. To
suppress the anti-government movement Ershad declared a state of
emergency suspending fundamental rights. But the emergency could not
bring the tense situation under control; it rather produced a counter-
action. The curfew was openly violated. The streets were filled with
processions, demonstrations and meetings demanding the resignation of
the government. Journalists and newspaper employers stopped the
publication of newspaper throughout the country. Many professional
groups such as university teachers, lawyers, journalists, doctors,
engineers, artists and others lent their unequivocal support to the
movement. In all big cities of the country thousands of people came out
in the streets defying curfew orders and shouted slogans demanding
resignation of Ershad. Radio and television artists, including newscasters
severed their relationship with the state controlled mass media. The
Constitution, Constitutional Law and Politics 169

whole nation came to a standstill. Under this situation on 3rd December

Ershad addressed the nation and declared that in order to ensure a free
and fair election he would hand over power to a neutral Vice-President
and resign from the post of President fifteen days before the date of
submission of nomination. But the opposition did not respond to this
proposal as they demanded Ershad's unconditional resignation. Finally
the last nail was driven when the army on 4th December decided to
withdraw its support form the President and wanted him to leave office.
Immediately Ershad decided to resign and hand over power. The
television broadcasted the news of Ershad's unconditional resignation.
The people's sustained struggle for democracy has at last triumphed with
autocratic President Ershad and the unprecedented mass-upsurge
compelled him to step down. The wearied people at last heaved a sigh of
relief. Another unprecedented jubilation spread out the streets and roads
of the country. On 5th December the opposition alliances decided to
nominate Justice Sahabuddin Ahmed, the Chief Justice of the Supreme
Court as Vice-President to enable him to become the Acting President of
the interim government. On 6th December the Vice-President Moudud
Ahmed resigned and Ershad appointed Justice Sahabuddin as the Vice-
President Immediately thereafter Ershad himself resigned and the new
Vice-President assumed the office of Acting President. Thus the 9 years
autocratic regime of Ershad came to ao end and the time came to lead the
nation on a new journey in search of democracy.

Fifth Parliamentary Election under the Acting President

Sahabuddin Ahmed and the Problem of Transfer of Power
Assuming the office of the Acting President Justice Sahabuddin
Ahmed first dissolved the existing parliament on 7th December.
According to the Joint Declaration Sahabuddin's interim govenrment's
main task was to hold a free and fair parliamentary election. To that
direction a free and fair election i.e. 5th parliamentary election was held
on 27th February, 1991. 'An unprecedented degree of enthusiasm was
shown by the political parties and the voters during the 5th parliamentary
election. This was mainly because the election itself was the outcome of
a prolonged movement by the opposition parties, students and
professional groups for the restoration of democracy also because it was
the first election in the political history of the country to be held under a
170 Amendments of the Constitution of Bangladesh

caretaker 1 interim government that was to be above party politics. 2 In the

independent Bangladesh actually no general election was considered
totally free and widely accepted till 1991. It was this 5th parliamentary
election which came to be considered as fully free and fair for the first
time in the electoral history of Bangladesh since 1970.

Local as well as many foreign observers found the election most

peaceful, free and fair. The result of the election was, however, startling
for it falsified all pre-election speculations. No party could win an
absolute majority. The BNP emerged with single largest majority by
bagging 140 seats out of 300 whereas the AL which was to emerge as the
largest party under the prediction of pre-election speculations and
analysis captured 88 seats only. Though the BNP won the single largest
majority, it was not in a position to form the government as it lacked the
required 151 seats. Addressing the nation on March I the Acting
President said-
Parliament shall be composed of 330 members including reserved
women members . ........ .Al least 166 seats is required for a party to command
n1aority in the parliament. But under the present elected party position in the
parliament no member seems to command the confidence of the majority
members. It is. therefore. not possible to form a cabinet at this moment under
Article 58 of the Constitution"

At this situation the BNP expressed its readiness to form a coalition

government with any patriotic and nationalist force. After a hectic
lobbying the Jamaat-i-lslami came forward to support the BNP. Now
Khaleda Zia was able to command the confidence of the majority
members and accordingly under Article 58 of the Constitution Acting
President formed a 30 member cabinet headed by Khaleda Zia on
March,19. This cabinet was, in accordance with the Constitution, tinder
the absolute control of the Acting President. The President had all the
executive powers and the cabinet was to aid and advise the president.
Khaleda Zia was not willing to revert the governmental system to a
parliamentary one and she began to create pressure upon the Acting

The ieml !caretaker' has been used here in general sense; not in strictly legal sense. See
further Chapter XXIII
2 Hakini, Muhammad A. ibid. P 46
Constitution. Constitutional Law and Politics 171

President to hand over power to the speaker of the parliament. But that
was not possible Constitutionally. Acting President in an address to the
nation said
"In accordance with the Joint Declaration of the three alliances I was to
transfer power to a sovereign parliament. ihough this Declaration has no
Constitutional validity it has the utmost political significance."

Thus reminding the three alliances about their commitments and

responsibilities the Acting President urged the members of parliament to
resolve the Constitutional issue by amending its provision and thereby to
pave safe way for transfer of power. Lastly Khaleda Zia in accordance
with the meetings with her kitchen cabinet, of the BNP central committee
and of the parliamentary party of the BNP decided to opt for a
parliamentary system.

Accordingly on 2 July, 1991 two Bills, the Constitution (Eleventh

Amendment) Bill, 1991 and the Constitution (Twelfth Amendment) Bill,
1991 were introduced in parliament by the BNP government. 1'}e
Opposition Amendment Bill was introduced on July 4, 1991 by Abdus
Samad Azad. On the same day four Amendent Bills were introduced by
the Worker's Party leader Rashed Khan Menon. In order to areas of
difference Parliament decided oil 9 to send all these Bills to a 15
member Select Committee comprising the Treasury and opposition
members. After much deliberation and discussion in 36 meetings the
committee finalised its report and come to a unanimous decision oil
July, 1991 and on that very day two Bills, the Constitution (Eleventh
Amendment) Bill and the Constitution (Twelfth Amendment) Bill were
introduced in the parliament. Then amidst cheers and jubilation they were
passed shortly after midnight at 6th August. 1991. The Twelfth
Amendment Bill was passed with 307-0 votes and the Eleventh
Amendment Bill was passed with 278-0 votes. After the Bills were
placed before the Acting President he, according to the amendment
procedure under Article 142 of the Constitution, sent the Twelfth
Amendment Bill for referendum before his assent. Referendum was held
on 15th September. Though the turnout of voters in the referendum was
very low, 84% of those who voted favoured the Amedment. The official
results of the referendum through a gazette notification came out at 18
September. Thus the Twelfth Amendment came to he effective on 18
172 Amendments of the Constitution of Bangladesh

September, 1991. A fresh start of counst!tLltionalism had begun in

Bangladesh.

It is pertinent to mention here that in the past every amendment to the

Constitution has been considered by political observers to be motivated
by personal interest or interests of certain quarters. But the Twelfth
Amendment aiming to return to the parliamentary form of government
seemed to rise above criticism, for all political powers reached a
consensus on the future course of the nation

Subject matter of the Eleventh Amendment

The Constitution (Eleventh Amendment) Bill, 1991 was passed with
a view to removing tie Constitutional hurdles to the Acting Presidents
return to his previous position in the Supreme Court. While assumed the
office of Vice President and then Acting President, he was
constitutionally not in a position to hold that post. Because he was
holding a post of profit as he was the Chief Justice which debarred him
from holding office of Vice President [Article 147(4)]. But without
resigning from the post of Chief Justice Sahabuddin Ahmed, in
accordance with the positive assurance given by the three alliances,
welcomed the post of Acting President for an interim period on condition
that after the transfer of power to a duly elected government he would be
allowed to get back to his original post of Chief Justice. Therefore to
legalise his appointment as Vice-President and his subsequent actions
and to find out ways and means for his return to his former office the
Eleventh Amendment Act was passed. This Amendment added a new
paragraph 21 which, inter alia, legalised the appointment and oath of
Sahahuddin Ahmed, Chief Justice of Bangladesh, as Vice-President of
the Republic and also the resignation tendered to him oil 6,
1990,
by the then President Ershad. Besides, this Act ratified, confirmed
and validated all powers exercised, all laws, ordinances promulgated, all
orders made, acts and things done and actions and proceedings taken by
the Vice-President as Acting President during the period between the 6th
December, 1990, and the day of taking over the office of the President by
the new President Abdur Rahman Biswas, duly elected under amended
provisions of the Constitution.
Constitution, Constitutional Law and Politics 173

Moreover, this Act also confirmed and made possible the return of
the Vice-President Sahabuddin Ahmed to his previous position of the
Chief Justice of Bangladesh.

The Presidential Election of 1991 and the

Return of Justice Sahabuddin
With the publication of the result of the referendum oil
September, 1991 the Twelfth Amendment came into effect and now the
amended Constitution elevated the status of the Prime Minister to
executive head of government and the Acting President turned into a
titular head of the state. As the governmental system was changed from
presidential to parliamentary one it was essential to form a new cabinet
under the amended Constitution. And as such on 19th September a new
parliamentary cabinet under the leadership of Kaleda Zia was sworn in.
Acting President was to remain in office till a new President under the
new system took oath. To that end presidential election was announced to
be held oil 8th October. The majority party BNP nominated Abdur
Rahman Biswas for the presidency who became controversial for his
alleged role in 1971 against the liberation war of Bangladesh. The
opposition AL which initially were not prepared to contest in the election
lastly nominated Justice Badrut Haider Chowdhury a retired Chief Justice
of Bangladesh, just to show a protest against the BNP's decision to
nominate a controversial person, in other words, against the politicising
of the highest office of the President. 1 The BNP candidate Abdur
Rahman Biswas was elected bagging 172 votes while AL-backed Justice
Badrul Haider Chawdhury bagged 92 votes. Some parties abstained from
voting. They were JP, JI, CPB, NAP, JSD (Siraj), Workers Party, NDP
and Islami Oikya Jote. However Biswas was sworn in as president on 9th
October and as per the provision of the Eleventh Amendment of the
Constitution the Acting President automatically returned to his original
post of Chief Justice in the Supreme Court.

Changes Introduced by the Twelfth Amendment

It was the Twelfth Amendment which, like an unexpected beginning,
reintroduced parliamentary system in Bangladesh paving the way for a
fresh start of constitutionalism. After 16 years of existing dictatorial

For details. see. I lakim. Muhammad. A. Ibid. Chapter V.

174 Amendments of the Constitution of Bangladesh

presidential system introduced by the 4th amendment in 1975

parliamentary system was reverted to for the second time by this
Amendment. Except for a few Articles the spirit and language of the
Twelfth Amendment are similar to those replaced by the Fourth
Amendment. The fundamental changes to that end introduced in the
constitution are following:
A. Position of the President
1. The President is now the titular head of the state while the Prime
Minister is the chief executive as per the provisions of Articles 48 and 55
of the amended Constitution. The posts of Vice-President and Deputy
Prime Minister have been abolished.

2. In the original Constitution the President was to he elected by

members ot parliament in a poll by secret ballot as provided for in the
Second Schedule of the Constitution. But the Twelfth Amendment did
not restore that Second Schedule. Now after this Amendment as per
Article 48 the President is to be elected by the members of parliament in
accordance with the law meaning that parliament may by law make
provision for election by open ballot which actually imposes a bar on the
exercise of personal freedom of members of parliament in electing the
President. A law was accordingly enacted which provided for that the
presidential election was to he done through open ballot. This provision
has, therefore, obviously created an open invitation for the election of a
partisan President. A well established practice in all dominions of Great
Britain and independent countries adopting parliamentary system of
ensuring the neutrality of the head of the state was, therefore, not
accepted.

3. Under the provisions introduced by the Fourth Amendment the

President could remain in office for an unlimited number of terms. These
undemocratic provisions have been abolished and now after the Twelfth
Amendment it is provided in Article 50(2) that no President shall hold
office for more than two terms. whether or not the terms are consecutive.
It has, therefore, restored the democratic provisions of the original
Constitution.
Constitution, Constitutional Law and Politics 175

4. Under the original Constitution the President could exercise only

one function independently. But now after the Twelfth Amendment
President can under Article 48(3) exercise independently two functions---
(i) to appoint Prime Minister who appears to him to command the
support of the majority of the members of parliament; and
(ii) to appoint the Chief Justice.
The extended power unlike in the original Constitution i.e.,
appointment of Chief Justice is a healthy provision in the sense that if it
were to be exercised on the advice of the Prime Minister then political
consideration would have hampered in the appointment procedure in the
judiciary.

5. Compared to the original Constitution the Twelfth Amendment has

imposed double check on the President's power to summon, prorogue and
dissolve parliament by inserting a new proviso to Article 72 " ......
provided further that in exercise of his functions under this clause the
President shall act in accordance with the advice of the Prime Minister
tendered to him in writing" meaning that now the president shall
summon, prorogue and dissolve parliament only under written advice of
the Prime Minister and not otherwise. This double check has been
imposed with a view to preventing undue and whimsical exercise of
power by the President to dissolve parliament making a directly elected
government unworkable as had occurred several times in Pakistan.

6. As to the declaration of emergency Article 141A has been

amended to the effect that the proclamation of emergency shall require
for its validity the counter signature of the Prime Minister before the
emergency is proclaimed. Thus the whole power of declaring emergency
virtually rests with the Prime Minister. This double check has also been
inserted with the same view i.e. to safeguard the possible misuse of
power by the president. The politics of united Pakistan left, bitter
experiences of such an abuse of power by the presidents for their selfish
end rendering the governmental system unworkable.

7. As to the suspens i on of enforcement of fundamental rights duriig

emergency under Article 14IC another doube check has been imposed
with the same view thai the President shall, during emergency. suspend
176 Amendments of the Constitution of Bangladesh

the enforcement of fundamental tights by order on the written advice of

the Prime Minister.

8. As to the impeachment and removal of the President the provisions

of the original Constitution have been revived i.e., both the cases of
initiation of motion and passing the resolution need simple majority and
two-thirds majority respectively.

B. The Prime Minister and the Cabinet

The cabinet headed by the Prime Minister has been re-introduced
keeping similarities with the provisions of the original Constitution.
I. It has been categorically provided in Article 55 that the executive
power of the Republic shall be exercised by or on the authority of the
Prime Minister. And that the cabinet shall be collectively responsible to
parliament.

2. The President shall appoint as Prime Minister the member of

parliament who appears to him to command the support of the majority
members of parliament. Other ministers shall also be appointed by him as
may be determined by the Prime Minister (Article 56).

3. Compared to the original Constitution of 1972 two changes have

been introduced by the Twelfth Amendment as regards the cabinet.
(i) In the original Constitution under Article 56 ministers could be
appointed from outside the parliarent but the condition was that such a
minister would have to be elected as a member of parliament within six
months. But now after the Twelfth Amendment one-tenths of the total
number of ministers can be appointed form outside parliament and they
unlike as provided in the original Constitution, need not be elected as
members of parliament but they must be qualified for election as
members of parliament.

It is noteworthy that this provision of appointment of ministers form

among non-parliamentary members is not recognised in true
parliamentary system. But this is justified in the sense that it enables the
government to utilize the service of technocrats. Because in most
Constitution, Constitutional Law and Politics 177

developing countries there is a shortage of capable and skilled lersons

among members of parliament.

(ii) In question of tenure of the office of Prime Minister the original

provision was that if the Prime Minister ceases to retain the support of a
majority of the members of parliament, he shall either resign his office or
advise the President to dissolve the parliament and on such advice the
President shall dissolve parliament. But a new condition imposed by the
Twelfth Amendment is that if the President is satisfied that no other
member of parliament commands the support of the majority of the
members of parliament only then he shall dissolve the parliament (Article
57(2)].

Compared to the provisions of the original Constitution the Twelfth

Amendment has made a definite improvement with regard to the power
cf the President to dissolve parliament. Because in the original
Constitution it was provided that if the Prime Minister after losing the
majority in the parliament or for any other reason requested the President
to dissol v e parliament, the President had no option but to do so.
President's role as a neutral head of the state to provide a check against
the whim of a Prime Minister was, therefore, turned into a nullity and
also the legislatures role in the dismissal of a Prime Minister and his
cabinet was negated. To this point the present Constitution, after the
Twelfth Amendment, contains the conventional features of a
parliamentary system as far as the powers of the President to dissolve
parliament are concerned. Because the President may now exercise a sort
of discretion to keep the balance of the Constitution on right turn.
President has now an option. before dissolving a parliament at the request
ethe Prime Minister, to examine the possibility of forming an alternate
cabinet. It has, in other words, ensured the legislature's effective role in
the dismissal of a Pilme Minister and his cabinet.

It should be pointed out that in true parliamentary form of

government as is practised in UK, India, Australia etc. the power of
dissolution is given to the King or President at his discretion and he uses
this power in accordance with wel -estaiished traditions and
conventions of parliamentary system. But as mentioned earlier this
discretionary power of the President was misused during the Pakistan

12
178 Amendments of the Constitution of Bangladesh

period which created cabinet instability and rendered parliamentary

government unworkable. Taking this bitter experience into consideration
the framers of the Constitution of Bangladesh provided for strict
provisions without leaving any scope for the President to act arbitrarily.

It is also noteworthy that though the Twelfth Amendment has

restored the conventional features of a parliamentary system as far as the
powe of the President to dissolve parliament are concerned, that power
has lost much of its importance due the barricade created by Article 70 of
the Constitution.'

C. The Issue of Floor Crossing and Ministerial

Responsibility
Compared to the provisions of Article 70 as it stood before the
Twelfth Amendment, the Twelfth Amendment has introduced more
stringent measures to prevent floor crossing. Two sub-sections have been
added to Article 70. Section 70(2) now prevents forming any dissident
group within the party. And section 70(3) provides that if an independent
member joins any political party he will come under the preview of anti-
defection provisions. (For implication and effect of Article 70 please see
chapter VIII).

D. The provisions as to the intervening period between two sessions

of parliament as provided for in Article 72 were reverted to that of the
original Constitution. It has, therefore, strengthened the role of
parliament (See also P. 114)

E. Chapter III dealing with the provisions of local government of Part

IV of the Constitution which was omitted by the Fourth Amendment has
been revived by the Twelfth Amendment. (See also P. 122,474-477)

F. Compared to the original Constitution and the 5th Amendment the

Twelfth Amendment has made a sort of improvement with regard to the
power of parliament in respect of international treaties. A new Article
145A has been created which now provides that all treaties with foreign

For details, see, Chapter VIII

Constitution, Constitutional Law and Politics I7

countries shall he laid before parliament by the President. Earlier the

President couLd refuse to lay before parliament any of such treaty on the
ground of national interest. (see also at P. 154).

THE THIRTEENTH AMENDMENT

For details of this Amendment please see Chapter XXIII.

THE FOURTEENTH AMENDMENT

Background: This amendment was passed on 16 May, 2004. As
mentioned above in Tenth Amendment, the last extension of 30 reserved
seats for women members in parliament expired in 2001 and as a result
the 8th parliament did not have reserved seats. However, after three years
of the life of the 8th parliament, on 16 May, 2004 the ruling BNP placed
and passed the 14th öhstitution Amendment Act to re-introduce
reserved seats for women in parliament. This time the number of reserved
seat for women member have been increased from 30 to 45. The main
provisions of the Act are as follows:

"65(3): Until the dissolution 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 reserve fort y fives 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."

Insertion of new paragraph in Fourth Schedule:

"23. Temporary special Provision regarding women members in
the Parliament. (1) for the residual period of the Parliament in
existence at the time of the Commencement of the Constitution
(fourteenth Amendment) Act, 2004 there shall be reserved fort y five
seats exclusively for women members and they will be elected by
members of the Parliament in accordance with law on the basis of
1J Amendments of the Constitution of Bangladesh

proceduic of proportional representation in the Parliament through

single anferab1e vote.

(2) During the period mentioned in sub-paragraph (1), the Parliament

shad consist of the three hundred members mentioned in clasue (2) of
arc1e 65 and the forty five women members mentioned in sub-
paragraph (1) of this paragraph."

Criticism: The 14th Amendment as a whole has more political

ramification than real. The provision for 45 reserved women seats in the
parliament has demoralised the idealism and spirit embedded in the
original constitution of 1972 particularly articles 10, 19(1), 27, 28(1),
28(2) of it. The thinking of the Constitution makers was to keep this vote
bank system operative only ten years which has been extended from time
to time by various government by amendments. When the 8th Parliament
increased the number of reserved seats for women from 30 to 45 with
indirect election system and extended for another ten years, it is clear that
the government's aim is to strengthen stigmatic vote bank system rather
than true democracy or women representation (See more discussion in
Chapter XVII).
Constitution, Constitutional Law and Politics 181

CHAPTER VIII

ANTI-DEFECTION LAW IN ARTICLE 70

OF PARUAMENTMY
AND THE MYTH
DF'OCRACY IN BANGLADESH'
PciticaL Defection
The term 'pctical defetion generally means to resign from ones
own party or to desert a political party in order to join another oijo The
term is otherwise called floor crossing' or 'side swapping' which in tlic
constitutional and political terminology generally means to cross one
members own party floor to another floor at the time of voting in the
House. It is also known as 'hopping from one side to the other'. In wider
sense both the terms have got application in changing i member's
allegiance from one party to another, being absent in the p.rha:icnt
ignoring the direction of the party at the time of voting, voting against the
party, abstaining from voting being present in the House etc. Though
'political defection' is basically connected with some fundamental rights
like pernal liberty, freedom of expression, freedom of association etc.,
it has been a growing political disease particularly in third world
countries like Pakistan, India, Nepal, Bangladesh, Malaysia etc.
threatening their very political development and hampering the
institutionalisation of democracy in many ways. This is because politics
in third world countries is hardly based on broad principles or issues.
Mostly the political parties are characterized by the politics of
conspiracy, self-interest, greed and power-expectation. At present in
Bangladesh there are more than one hundred political parties but none of
them has definite ideology or programmes to be followed by future
generation. Though one or two major parties have their ideology and
programmes, their leaders often defy them for their selfish end; almost all
parties are based around individuals; most do not have any grass-roots
organisations or sufficient support to claim public representation. Those
who lack fixed ideas but control money and influence here tends to
prosper in political life. Absence of democracy within the party

A modified form this chapter was published by CAC in 1996 under the heading
'Article 70: Does it Lead to Dictatorship?', and also was read in a scniincr in 1997
under the title 'Provisions for Floor Crossing in Atricle 70 of the Constitution and the
Parliamentary Democracy in Bangladesh."
182 Anti-Defection Law in Article 70

Organisation, power-expectation among leaders, absence of proper

organisational activities of the party, mutual suspicion among party
leaders, anti-democratic dynastic phenomenon in party leadership,
absence of proper knowledge about a party as an institution of democracy
both among leaders and workers, illiterate and politically unconscious
people- all these are the factors leading to factionalism and mushroom-
growth of political parties. As to political factionalism in Bangladesh
there is a frequently quoted statement - 'That one Bengali is one party;
two Bengalis, two political parties; and three Bengalis, two political
parties with dissident faction in one of them.' If we look at the politics
Of our elected representative we will also find a very sordid picture; once
members are elected. they tend to cross the floor for their selfish end,
they defy party decisions and ignore party commitment made to the
electorate resulting in splitting of parties and destroying party cohesion.
The lure of government office and the consequent illegal economic
advantages or, in other words, the scope for corruption and kickbacks are
a temptation that very few legislators can resist. As a result they change
party or cross the floor frequently. This encourages factionalism and
u!tirnatcly disrupts the stability of the government and smooth
functioning of the entire system.

In the 1970's the problem of defection in India reached alarming

proportions. In local Hindi parlance the defecting legislators were called
'Ayaram' and 'Gayaram'- persons who cross the floor (or hop) again and
again. 2 Subbash C. Kashyap, who was Secretary - General of Lok Sabha
(the House of People) from 1980 to 1990, states in his book 'A nti-
Defection Law':
'Between the fourth and fifth general election in 1967 and 1972 from among
4000 odd members of the Lok Sabha and the Legislative Assemblies in the
States and the Union Territories, there were nearly 2,000 cases of defection
and counter-defection. By the end of March, 1971 approximately 50% of the
lcgislators had changed their party affiliations and several of them did so
more than once..., some of them as many as five times. One MLA was found

Baxter. Craig. Governnent and Politics in South A sia, Second ed. (Oxford West
V iew Press, 1991), P. 248
Diwan. Anil, Anti-Defection Law in India, Compiled in 'The Peoples' Representatives
Electoral Svstein in the A sia Pacific Region "—edited by Graham 1-lassall & Cheryl
Saunders. (Australia: Allen & tinwin, 1997). P. 163
Constitution, Constitutional Law and Politics 18--

to have defected five times to be a Minister for only five days. For sometime
on an average almost one State Government was failing each month due to
changes in party affiliations by members. In the case of State Assemblies
alone, as much as 50.5 percent of the total number of legislators changed
their political affiliations at least once. The percentage would be even more
alarming if such state were left out where government happened to he more
stable and changes of political affiliations or defections from parties
remained very infrequent. That the lure of office played a dominant part in
this political horse trading was obvious from the fact that out of 210
defecting legislators of the various States during the first year of 'def'ection
politics'. 116 were included in the Council of Ministers in the governments
which they helped to form."1

Thus the evil of political defection has been a matter of national

coñàèrhh ln Wanylti'elopihg cbuntries, To stop this widespread floor-
croti (6 hoIrig) màtiy dOUntries have incorporated anti-defection
(or anti-hopping) laitheir constitutions. India has made this law
through the 52nd Amendment of the Constitution.

Similarly taking a bitter lesson from the political defection in the

then undivided Pakistan our Constitution makers have incorporated anti-
defection laws in Article 70 of the Constitution. But in doing so the
Constitution makers have done more than was necessary to prevent
defection and to sustain stability of the government. Now Article 70 has
been a stumbling block to the flourishment of democracy in the country.
Before going to discuss the historical background of anti-defection law in
Article 70 it seems, therefore, more convenient to discuss first Article 70
and its impact over constitutionalism in Bangladesh.

Article 70 of the Bangladesh Constitution

"70 (1) A person elected as a member of Parliament at an election at which he
was nominated as candidate by a political party shall vacate his seat if he
resigns from that party or votes in Parliament against that party.
Explanation. - If member of Parliament-
(a) being present in Parliament abstains from voting; or

1 Quoted. ibid. P. 164

1 84 Anti-Defection Law in Article 70

(b) absents himself from any sitting of Parliament,

ignoring the direction of the party which nominated him at the election as a
candidate not to do so. he shall he deemed to have voted against that party.
(2) it at any time, any question as to the leadership of the Parliamentary party of
a political party arises, the Speaker shall, within seven days of being
informed of it in writing by a person claiming the leadership of the majority
of the members of that party in Parliament. convene a meeting of all
members of parliament of that party in accordance with the rules of
procedure of Parliament and determine its Parliamentary leadership by the
votes of the majority through division and if in the matter of voting in
Parliament, any member does not comply with the direction of the leadership
so determined, he shall be deemed to have voted against that party under
clause (1) and shall vacate his seat in the Parliament.
(3) if a person, after being elected as a member of Parliament as an independent
candidate, joins any political party, he shall, for the purpose of this article, be
deemed to have been elected as a nominee of that party.

Article 70 is one of the grounds of vacation of seats of members of

parliament. But as the provision goes, Article 70 has been independently
made in the Constitution as an anti-defection law or in the other sense all
the conditions of Article 70 have been designed to prevent floor-crossing
of the members of the parliament. In the original Constitution of 1972
only two conditions were imposed against defection:
i) if a member resigns from his party or
ii) if he votes in parliament against his party.
By the 4th Amendment, another two conditions were added by inserting an
explanation of the words 'votes in Parlitinent against his party'. They are:
i) if a member, being present in he paiiament. abstains from voting; of-
ii) if he. ignoring the direction of his party, absents himself from any sitting
of parliament.
Again, by the 12th Arnendnent. another two conditions have been
inserted- The effect of these two conditions are:
i) forming a group within the parliamentary party of a political party has
been quite impossible due to provision in Article 70(2).
ii) if an independent elected member of parliament joins any political party,
he will come under the purview of anti-defection provisions.
Constitution, Constitutional Law and Politics i85

After the 12th Amendment, a member of parliament can be unseated

on six grounds under Article 70. This :rti]e, which had only seven lines
in the original Constitution, is n almost a full-page.

Implications and Effect of Article 70

in the Politics of Bangladesh
The spirit of parliamentary government lies in the sense that unlike
presidential government, this form of government is directly responsible
to the legislature. Parliament does not gOvern the country but the
government is formed from within Jic parliament and parliament retains
the stick to beat the government any time it goes beyond the limits
expected of it. In presidential system. executive is not responsible to the
legislature. It is indirectly responsible to the people and the test of such
responsibility comes after a definite period during which it is quite
impossible to remove the executive from office. But in a parliamentary
system the executive has no definite tim.-, limit to run the country though
it is elected for a definite period. The exccutve can govern as long as it
can retain majority in parliament. As soon as it looses the support of the
majority members of parliament, it falls. A parliamentary form of
government has to run the country alwiys in fear of being defeated in the
House and therefore, it has to always feel the nulse of the members, and
as result, it is more responsive. But when the government finds itself in a
position where it cannot be defeated easily in parialilent, it becomes less
responsive and then it gets easy to be dictutorial. This has been the
tendency in Bangladesh, Pakistan and Indian parliamentary democracies
and it is Article 70 of our constitution tha t makes parliamentary
government in Bangladesh tend to become an eleted dictatorship.

The implications of Article 70 can be discussed under ivillowing,

heads:

1) Article 70 is contradictory to the fundamental rights of

MPs namely personal liberty, freedom of association,
freedom of thought and conscience and of speech:
From the broader point of view, political defection is a democratic
right connected with personal liberty and freedom of thought and of
speech. Right to vote against party decision, or to be absent in the house
I 86 Anti-Defection Law in Article 70

in protest of party's undemocratic decision, or abstain from voting, is

connected with the personal liberty of a member. A member of the
legislature who is elected directly by the people is always expected to act
in a democratic spirit. People's mandate is reposed on him not to act on
undemocratic party line but to raise voice against whimsical or
undemocratic decisions. But as the provision goes, it is quite impossible
for a group of a parliamentary party inside parliament to revolt and form
a dissident group. Neither an individual nor a group has the right to
dissent. It is compulsory for MPs to vote on party lines. No MP can dare
raise his voice against his party decision. Though Article 70 is not a bar
for free deliberation in party-meetings or committee meetings many MPs
have opined that as a result of this provision they can neither speak their
mind freely in the parliament nor in the party-meetings. By loosing his
free right to vote, or to be present or absent in the parliament, he turns
into a puppet of hi part9. People who elected him cannot expect him to
use his conscience on their behalf. Many of the members of the 5th and
7th Parliaments of Bangladesh have expressed their views that Article 70
is repressive. It has been a deterrent to their playing an effective
democratic role in legislation and other functioning in the parliament.

2) Article 70 undermines the spirit of responsible government

and leads to elective dictatorship in Bangladesh:
The underlying principle of a parliamentary democracy is that the
government is directly responsible to the legislature. Parliamentary
government has to pass every step counting the pulse of the majority
members of the legislature, for it may at any time be defeated on the
floor. It is called a responsible government mainly because of two
intrinsic features - individual responsibility of the ministers and
collective responsibility of the cabinet. In the Bangladesh Constitution,
no provision for individual responsibility has been made; nor does it exist
in the political culture. Article 55 however provides for collective
responsibility to the effect that The cabinet shall be collectively
responsible to parliament'. But ironically enough, this provision for
collective responsibility has become a soundless vessel because of
Article 70 as the cabinet is always sure that it is not going to he defeated
by motion of no-confidence or confidence, for no member of the majority
party has the right to vote against the party. The cabinet does not need to
feel the Pulse of the majority members. So obviously it is easier for the
Prime Minister to be dictatorial and hence the lofty idealism with which
Constitution, Constitutional Law and Politics 187

the parliamentary government was accepted has been negated.

Undoubtedly, it can, therefore, be said that the Bangladesh polity has
parliamentary democracy in form, not in essence or culture. 'Article 70 is
contradictory to the principle of democracy and right of conscience as
guaranteed by the Constitution ......Democracy cannot flourish if
members of parliament were to be blackmailed by party hierarchy. It
tends to place the party above the interest of the nation. Although in
practice, members are to go along with the line of the party to implement
its programme, to impose a constitutional bar on the freedom of the
members, in case the party deviated from its declared policies and
programmes, could have impaired the functioning of the parliament itself.
Members are elected for a period of five years making pledges to their
respective constituencies on the basis of political programme and,
therefore, it was undemocratic to tie them down to the dictates of a
political party'

3) Article 70 is a great hindrance to the ensuring of rule of

law in the country:
Rule of law as distinguished from rule of man or party, means rule of
that law which is passed in a democratically elected parliament after
adequate discussion and deliberation. When there is the scope of
adequate deliberation and discussion over a bill, it creates environment to
remove undemocratic provisions from it. But because of Article 70 no
dissenting opinion can be made by the members of the ruling party and as
a result every bill, however undemocratic it may be, gets quickly passed
or approved. The government always with a view to avoiding debate
makes law by ordinances and later gets them approved under the
sweeping power of Article 70. The number of ordinances placed for
approval is always far larger than the general bills passed. Sometimes
ordinance is made 4 or 5 days before the starts of parliament session and
sometimes a parliament session only approves ordinances and no other
legislative function is done at all. The second session of the fourth
parliament, first, thirteenth and nineteenth session of the fifth parliament
provide glaring example of it. This tendency of the government as
pointed out by a commentator 'shows an attitude of complete disregard
for the parliamentary culture and reluctance for building political

Ahmed. Moudud . Bangladesh : lci of Sheikh itlujthur Rahn,an. P. 108

I 88 Anti-Defection Law in Aiice 70

institutions. This is an attiiude that has become ingrained in our society

resulting in the deep morass into which politics in this country has
sunk'. 1 For Lhis widespread misuse of ordinance making power by-
passing the parliament it is sometimes typically said that Bangladesh
Parliament does not legislate but legitimates. So Article 70 has turned a
responsible government into an elected dictatorial government and rule
of law into the rule of party.

Floor-crossing, or voting against the party decisku, or locin o absent

in the House in protest of a party's undemocratic decision is ahays
connected with the democratic rights like persnai libert y frecdcm of
expression etc. In devcloped countries like Britan, 1JfA, Canada, France.
there exist unfettercd voting right for niernher, ol tiC legislature. To stop
floor-crossing is an inconceivable matt'; in iiiose countries. Now a
question, therefore, arises why have Snkil undemocratic provisions been
incorporated in the Constitution?

It was the result of bitter experience of severe political defections in

25 years of the thai.Pukistai politics. Unfettered political defection and
widespread floor-cr ssing were the only cause of fall of parliamentary
government in tie then Pakistan. Now. we should see the scenario of
politics in e then East Pakistan and defections within the AL which
have jusfied the inserin. of ani-dcfccica !a': in Article 70.

Scenario of Political Defection in the then

East Pakistan
The past experience of the parliamentary system in Pakistan, both at
centre and in the states, showed that members once elected tended to
cross the floor for their selfish ends rendering the parliamentary system
unworkable on many occasions. They would defy party decisions and
ignore party commitments made to the electorate resulting in splitting of
parties and destroying of party cohesion. This encouraged factionalism
and ultimately disrupted the stability of the government and smooth
functioning of the entire system.

Legislation b y Ordinance. A Paper by. Choudhury. Nazirn Kamran, P. 22 (Published

by CAC)
Constitution, Constitutionai Law and Politics 189

The fall of parliamentary government in Pakistan was mainly caused

by political defecticu. Let us see the scenario in the then East Pakistan. In
the provincial elections of 1954 the United Front had an unprecedented
victory which affected the Muslim League administration of the central
government and created a sense of panic in the mind of ruling elite. 'It
was a healthy sign to provide a suitable basis for the growth and success
of democracy in East Paki:tan') Winning the landslide victory the United
Front formed government in East Bengal 2 under the leadership of A.K.
Faziul Haq.

The impact of the election also had a direct bearing on the members
of the Constituent Assembly, particularly those who were representing
East Pakistan on behalf of Muslim League. But the United Front could
not remain united due to political dofections. It broke as each constit.ient
party was racing to have the test of power. The AL, the mcr component
of United Front, came out of the From for power sharing in tic c.ntre.

Coming out from the United Front, AL became the opposition, aini
Abu I lossain Sarkar of United Front formed the government in 1955
under the leadership of A K FazIul Haq. the leader of the rest of the
United Front. But this cabinet, supported by some minor parties like,
Congress Party, Scheduled Cast, and United Progressive Party, was very
weak. A coalition such as this did not have a common policy. Each group

Chovdhury. Dr. Muzaffar Ahmed. Government and Polithv in Pakistan, P.193

From the 14th August .1947 till 1956 the name of this cowiry vas 'Fast Bengal. In
the 1956 Constitution of Pakistan this name was replaced by ' LMt Pakistan' as one of
the two wings of Pakistan. In 1962 Constitution the same 'East akistan' was retained
which continued till the independence of Bangladesh. The name Bangladesh' came to
he visible for the first time. most probably, in some slogans used b 'Nucleus' a group
of Chatra Leaque (Student 1.eaguc) under the leadership of Sirajul Aleni Khan in the
days of mass-upsurge. particularly in February. 1969. against Avub Administration.
Two of the slogans were 'Amar Desh. Tomar Desh. 13aiigLdcsh' (My couffly and your
country is Bangladesh). 'l3ir l3angalee Astra Dhar. Bn2ladesh ShaddT Kr' (!Ieroie
l3angalec ! Take arms and liberate Bangladesh) ISee. Siraiul [slam. tiangi'le'I'er
Itihas (History of Banigadesh) VolI.l. PP. 556— 557]. later oil December. 1969 a
a gathering oil death anniversary of Hussain Shahid Suhraward) Sheikh Mujib
formally declared the name of this country as 'Bangladesh' . This name came to he
realised through the war of independence in 1971. (Based on intervie\\ with Barrister
Aminil Islam.)
190 Anti-Defection Law in Article 70

of this coalition had different ideas to incorporate into the Constitution of

1956. Major disagreements on both local and national issues caused four
of the minor parties to withdraw their support to Abu Hossain Sarkar, and
government had to resign oil September 1956. After the fall of the
Abu 1-lossain Sarkar government, Ataur Rahnin Khan, the leader of the
opposition AL, formed the new government. A week later H. S.
Suhrawardy also became of Prime Minister of Pakistan. So AL came to
power both at the centre and in the province. However, due to
disagreement with Suhrawardy's foreign policy Moulana Abdul Hamid
Khan Bhashani came Out of the AL and formed a new party, the NAP.
About 28 members of Al, joined the NAP, and decided to withdraw their
support to the provincial government. As a result, Ataur Rahman Khan's
cabinet was dismissed oil 31, 1958.

The AL ministry was reinstated by the intervention of the centre. I

But on June 18, 1958 the ministry was defeated on the floor of the House
oil cut-motion, when all oil sudden the NAP and some Hindu
members withdrew their support.

After the fall of AL government Abu Hossain Sarkar was

commissioned to form a new ministry on June 18, 1958. But the Sarkar
ministry was again defeated on the floor by AL with the support of NAP
on June 22, 1958.

As a result of this chaos in politics of East Pakistan, the government

was taken over by the centre. After the withdrawal of the central
governments rule on 25th August, 1958 Ataur Rahman Khan was again
invited to form the government. The East Pakistan Provincial Assembly
was called into session on September 20, 1958. The Speaker was Abdul
Hakim. Government members moved a no-confidence motion against the
Speaker. The threatening attitude of government members towards the
Speaker, intending to remove him from the House, resulted in scuffling
and rioting between the members of government and opposition parties

It is lobe noted that in March 31.1958 after the fall of the Ataur Rahinans government
Abu I lossain Sarkar was invited to form government. But within 12 hours Abu
Hossain Sarkars ministr y, was dismissed by the central government and the next day
.1st April. Ataur Rahrnan was invited to form the government.
Constitution, Constitutional Law and Politics 191

and the Speaker was removed from the House by force. On September
23, the government was determined to carry on with the business of the
House with Deputy Speaker Shahed All in the chair. But the opposition
(KSP) did not accept him as acting Speaker. The House became virtually
an unruly chamber from the start, causing insult to the National Flag and
causing death to the Deputy Speaker. Thus the law-makers of the East
Pakistan Provincial Assembly became law-breakers, and the blackest
chapter in the history of our parliamentary politics was created. This
disgraceful state of affairs was one of the main cause of declaring martial
law on October 7, 1958. In the proclamation President Mirza in
justification of the military take over said:'
"The disgraceful scene enacted recently in the East Pakistan Assembly is
known to all ........it certainly not a civilized mode of procedure. You do not
raise the prestige of your country by beating the Speaker, killing the Deputy
Speaker and desecrating the National Flag. The mentality of the political
parties has sunk so low that I am unable any longer to believe that elections
will improve the present chaotic internal situation and enable us to farm a
strong and stable government capable of dealing with the innumerable and
complex problems facing us today........

Defections and Factional Strife within

the Awami League
Now we should evaluate the splits and conflicts within the AL during
Pakistan which left an impact on it to subsequently enact anti-defection
laws in Bangladesh.

The AL suffered a split first in February, 1955 over the issue of A.K.
Faziul Huq's leadership. A group of AL (above 32 members) led by
Abdus Salam Khan and Hasimuddin Ahmed disobeyed the AL mandate
to vote for no-confidence motion against Huq at the United Front
parliamentary party meeting.

The second split which seriously destroyed the organization of the

AL and also weakened the strength in the legislature, was the formation
of NAP. NAP was formed by Moulana Bhashani due to disagreement
between him and Suhrawardy on the question of foreign policy of
Pakistan. These differences within the party were a source of
192 Anti-Defection Law in Article 70

embarrassment to the AL in power in the centre, as well as in the

province." For the AL, the implications of tha formation of NAP were
twofold. In the organizational field, the EPAL lost the control of several
district branches and Dhaka City AL. In the Assembly, the AL lost the
support of about 25 of its members. Its position in the government was
further weakened by the loss of a coalition partner-- the Ganatantri Dal.
The official Ganatantri Dal merged with the NAP, while a rump body
claimed to continue its separate entity in the legislature". 1 In 1957
before the Autumn session of the Assembly the NAP parliamentary party
was formed and a distinct po!itical force emerged in vie Assembly. And
this new force (NAP) played a disruptive role of suporting and then
opposing one ministry after another in East Pakistan. Al the flrst, the AL
government had 'io resign, for it no more commanded the majority in the
House (3 1st Mardi 1958). NAP's withdrawal f support ed to fall of the
AL ministry on 19th June, 1958 and the United Front miitty succeeded
t. The same da y the NAP switched support tc the AL and b:o! ght down
the United Front ministry.

Besides the loss of iimber's in two solid blocks (NAP ad aam-

Hashem group) damaging seriousl y the party cohesion and organization,
AL also suffered several minor individual defections in the leia.ure.
The real picture of these individual defections has n been vtF-i out
by any academic research or investigation. But some idea may be L
from Ataur Rahman Khan's reminiscences of his two years as Chiet
Minister. He wrote that individuals and groups of members of his patty
(at both legislative and organizational levels) threatened to severe links
with the party and withdraw support for ordinary matters in the nature of
personal favours.
'Several individual members for their personal interest did not attend
party meetings. did not follow party decisions and in the House they
whimsically crossed floor.......
Even for some highly subiective reasons such as lack of adequate
courtesy shown by the Chief Minister, loss of prestige etc., party members
delctcd or voted against the party.......

Chowdhury Dr. Najma. 7/zr legislative Process in Bang/acles/z: Politics and

l":inclioning of then East Bengal Legislature 1947-58, P. 197.
Constitution, Constitutional Law and Politics 193

One member did not get the intervention of the Chief Minister in his
personal case and as a result he defected........
Another member did not get the intervention of the Chief Minister in
reinstating a police officer who had been dismissed for indecency towards a
girl and as a result he defected........
Another member was accused of black-marketing, lie sought
intervention of the Chief Minister and failing to get this he defected.........
Another member's name was not included in the local relief Committee.
and in protest he defected.......
Money for flood affected people was sent in the name of a school
secretary and not in the name of the member of the locality. The member in
protest defected.........
Another member failed to acquire possession of a house in an unfair
way, and crossed floor of the House........
Another woman member failed in lobbying for husband's service and
absented herself from the sitting of the I-louse ......... ..

The above discussion makes it clear that splits and individual

defections in the AL was not for any clash of ideology or principle but
for self-interest, personal likes or dislikes etc.' Sometimes in the hope of
rewards like cabinet posts, parliamentary appointments, permits, licenses
etc. members changed their parties". 2 'Party indiscipline and lack of
solidarity within the parties were manifested in the free use of threats and
pressures. Members crossed the floor and changed parties freely and evi'r
charges of kidnapping and manhandling of Assembly members were
made by the both sides".3

It is to be noted that though AL suffered several minor individual

defections as mentioned above in the legislature, none of these were the
cause of the fall of government in the province. But these, specially the
role of NAP, left a bitter lesson that politics in our society is based not on
principle and ideology, but on selfish needs. Politicians after being

l Khan. Ataur Rabman. Two Years [Chief Ministership. (in Bengali). P. 176-203.
(emphasis added by the author).
2 Chowdhurv,Dr, Najma: ibid.. P. 216
Khan. Mohammed Ayub. Friends not Masters, 1155.
194 Anti-Defection Law in Article 70

elected think that power is the ultimate goal of politics and for that end,
they can easily defy party mandate and change parties making the
parliamentary process unworkable.
'It is with this end in view that the AL committed itself since long
to stop this possible anarchy within the parliament. As long hack as
in 1969 when a Constitution Amendment Bill was drafted for the
National Assembly of Ayub Khan amending the 1962 Constitution,
the AL incorporated such a provision. It provided that:
4(a) If any person, having been elected to a legislature as a candidate or
nominee of political party -
i) withdraws himself from it; or
ii) is expelled by his political party for violation of the partvs mandate in
respect of any matter relating to his activities as a member of the
legislature;
iii) votes, or abstains from voting against the direction of such political party
upon any legislative measure or any motion put to vote in the legislature.
he shall cease to be a member of the legislature for the unexpired period
of his term unless such member is re-elected at a by-election occasioned
by the vacancy created by such cessation of membership.
It is evident from the above provision that the thought-process of the AL
leader Was working for a long time on this line and therefore, in the
1972 Constitution they maintained the same views with some leniency)

Comment and Suggestions for Article 70

Political defections and floor-crossings have been a frequent
phenamenon in democracy of India, Bangladesh, Pakistan etc. Recently
Nepal has also been affected seriously by this political disease. India,
Pakistan and Bangladesh taking bitter lessons from their past history
were bound to insert anti-defection provisions into their constitutions. So
anti-defection law is a political reality in these countries, however
undemocratic it may be. Because for national interests stable and
effective government is always more important than the system.
However, it should not he forgotten that in the name of stable
government the whole spirit of responsible government and rule of law
cannot be negated. But suc has been the outcome of Article 70 when

Ahined. Moudud . Bangladesh: I:ra of Sheikh hiujibur Rahman, P.109.

Constitution, Constitutional Law and Politics 195

major laws of vital national interests are being made by ordinances and
are getting easy approval without any protest or challenge.

Again, politics in third world countries like Bangladesh, Pakistan and

issues. Mostly the political
India are hardly based on broad principles or
parties are characterized by the politics of conspiracy. self-interest, greed
and -Tower expectation. They are personality-oriented with followers
Clustering round a party leader who in turn becomes dictatorial.

What we now, therefore, have to do is to find a compromise process

whereby floor-crossin g can be prevented and the spirit of responsible
parliamentary government can also be sustained. The existing provision
in Article 70 is quite destructive to the spirit of parliamentary democracy.
So the author ventures to make the following recommendations:

The prevention of floor-crossing and defection is essential only for

the stability of the government. The stability of the government is tested
only by a motion of no-confidence or confidence. The application of the
anti-defection law i.e. the provision of Article 70 must, therefore, be
restricted to a vote on a no-confidence or confidence motion only. A
normal or gneral bill is not necessarily connected with the stability of
the government. The government may fail to pass a bill, he it a money
bill or cut-motion or any other bill. But failure of passing this bill, or
even defeat in a cut-motion does not mean the fall of the government.
The government has to face a no-confidence motion and lose before it
falls.
If the anti-defection law is applied only to motions of no-confidence
or confidence MPs will have freedom to oppose an undemocratic bill, be
it money bill or approval of an ordinance. As a result, rule of law and the
spirit of responsible parliamentary government will not be so hampered.
.A proviso may he inserted by an Amendment to Article 70 to the
following effect:
Provided that the provision of this Article shall he applied only when
the government faces a motion ol no-conhdence or con hdcncc.'

7thi parliament a private member's bill

It is to be noted that in the
named the Constitution (Fourteenth Amendment) (Parliamentary
196 Anti-Defection Law in Article 70

Privileges) Bill 1997 was moved. This bill moved by a JP member,

Golam Mohammed Kader, sought to amend Article 70 of the
Constitution with a view to giving the MPs more freedom in voting in
parliament. In particular, the Bill provided that the restriction of Article
70 would be applicable only when an MP was required to vote on a
motion of no-confidence against the Government or when a member was
required to prove that he/she commanded the support of the majority of
the MPs. However, being a private member's bill it was not introduced in
the House though the Committee oil Members Bill and
Resolutions recommended its introduction in July 1999.

Paliamentary democracy should be allowed to grow in its natural

way. The success of parliamentary democracy depends on democracy and
discipline within the political parties. It is difficult to maintain
democracy at the governmental level if there is no democracy within the
party unit. And democracy within the party is a matter of gradual
development; it cannot be made by force of a law . It is for the
disciplined party system that no government with a majority has been
overthrown in the House of Commons since 1895. A political instance
like voting against the party or being absent in the House with a view to
defeating the government for selfish end can never be found in developed
countries. There is no need to pass motion of censure, no-confidence'
motion or cut motion in a well-developed parliamentary polity. Whenever
any such possibility appears in the House, the cabinet or respective
minister willingly resigns. Here lies the true political spirit and culture of
responsible government. It cannot be sustained by anti-defection law. So
from the broader point of view, we need greatly democracy and
discipline within the parties, the political spirit of responsible
government among the party leaders and MPs.
\\'ith regard to floor crossing a writ was filled in the I ugh Court
Division in 1998 following two opposition MPs joining Treasury Bench
without permission from their party. The matter was decided b y the
Appellate Division in the .S'&n/wy. Parharneni .Secn'ia,iai z Khandaker Deiwar
Ho. yain and ()therr 19 BL1)(\D) 276. The Al) held that if there is any
dispute with regard to disqualification of an MP, the matter is to be decided
by the Election Commission; Speaker of the Parliament does not have any
power. The court also held that the subject matter of Article 70 is within the
exclusive jurisdiction of the Election Commission.
Constitution, Constitutional Law and Politics 197

CHAPTER IX

RESPONSIBLE GOVERNMENT

Responsibility
Generally responsibility means the accountability of a person or
body to another person or body. This responsibility may be political
or legal. But the term 'responsibility' in relation to modern
democratic governmental system means political responsibility i.e.
responsibility to the people or a body representing the people. This
political responsibility may be used in two senses (I) Direct
Responsibility; and (ii) Indirect Responsibility. Both the
presidential and parliamentary form of government are responsible
government but the presidential system has no, in a sense, direct
responsibility; its responsibility is indirect whereas the
parliamentary system has direct responsibility.

Indirect Responsibility
When the accountability or responsibility of a government
cannot be enforced directly by an elected body or parliament, the
responsibility is indirect. Presidential system of government has this
indirect responsibility. This is because in a presidential system all
ministers are like servants or advisers of the President. Unlike in the
parliamentary system ministers in presidential system have neither
individual responsibility nor collective responsibility to be enforced
by parliament. They are absolutely responsible to the President who
can dismiss them whenever he wishes. All political responsibility is
vested in the President alone and he has to take responsibility for all
governmental actions. But there is no mechanism in this system to
enforce this responsibility of the President directly. Because the
President is not accountable to parliament; he has no responsibility
to justify his action in parliament and parliament can never proceed
for no-confidence motion against him. He is truly indirectly
responsible to the people and the test of such responsibility comes
after a definite period, e.g. five years, during which it is quite
impossible to remove him from office.
It is pertinent to mention here that in presidential system the
President may be removed from his office through impeachment.
I 98 Responsible Government

But this impeachment is not any device to make him responsible to

parliament directly. Because-
First, the impeachment procedure is a very difficult procedure;
it cannot he enforced by any simple majority. To impeach the
President under the US Constitution a resolution thereto is to be
moved in the House of Representative by one or more members. If
the resolution is supported by the majority in the House, it then
goes to the Senate for trial. If the charge is supported by votes of
two-thirds of the total members present, the president shall vacate
his office (Article I Sec. 3 & Article 2 Sec. 4). During more than
200 years of the US presidential system only two times the
Congress took attempts to impeach the President. The first was in
1 867 when the Congress moved an impeachment motion against
President Andrew Johnson. But the motion could not be passed for
the want of one vote in favour of the motion. The second was in
1972 when the Congress proceeded to move impeachment against
President Nixon on the ground of his Watergate scandal. But Nixon
resigned before the motion could be moved.
Second, the President cannot be impeached on any ground of
political responsibility. He can be impeached only on some limited
grounds specifically mentioned in the constitution.

Direct Responsibility
When the responsibility of a government can be enforced
directly by a representative body of the people i.e., parliament, the
responsibility may be termed as a direct responsibility. This type of
responsibility exists in Westminster type of parliamentary form of
government. 'The term responsibility which is more common in
Britain than in most other countries is to signify the accountability
of ministers or of the government as a whole to an elected
assembly".' Thus in true sense responsible government means a
government which is directly accountable to a parliament and is
bound to resign whenever it loses support of the majority in it. For
two specific reasons or intrinsic features attributed to this system

flirch. All. l?epreseniaz,ve & Responsible Government, (London: George Allen And
I. Ltd. 1966). P.20
Constitution, Constitutional Law and Politics 199

the parliamentary form of government is called responsible

government. They are-
i) Individual responsibility of ministers; and
ii) Collective responsibility of the cabinet or government as a
whole.

Individual Responsibility
Every individual minister is responsible to parliament for the
work of his department. He must answer all questions relating to his
department and must give the House a full and frank explanation of
policy and decisions. He is personally responsible to parliament for
every failure of departmental policy or administration whether it is
the minister himself who was at fault, or a civil servant or if the
failure resulted from a defect of departmental organisation. lie
cannot get rid of his liability by pleading that he acted in obedience
to royal order or by imputing the blame to civil servants. The
minister must submit to the judgment of parliament and if the
failure is a serious one, he should resign (or be ready to resign)
from office without wanting for a vote of censure.

Collective Responsibility
In parliamentary form of government the cabinet headed by the
prime minister is the real executive. This executive i.e., the cabinet
is collectively responsible to parliament in the sense that it can
remain in power so long it commands the confidence of the
majority in parliament and as soon as the confidence is withdrawn
the government as a whole must resign. The government in
parliamentary system has, therefore, no definite time-limit to run
the country although it is elected for a definite period. It has to rule
the country always in fear of being defeated in the House and
therefore it has to always feel the pulse of the majority members,
and as a result, the responsibility of such a government is definitely
a direct one.
200 Responsible Government

How far a Responsible Government has been ensured

in the Constitution of Bangladesh.
The original Constitution of 1972 of Bangladesh introduced
parliamentary form of government. Then alter 16 years of
presidential system introduced by the 4th Amendment in 1975 the
12th Amendment has again re-introduced parliamentary system in
the country. But the fact is that the Constitution (neither the original
nor the 12th Amendment) has not ensured a responsible
government. Because none of the two necessary conditions
(individual responsibility and collective responsibility) of a trite
responsible government have been ensured in the Constitution.

First, there is no provision for individual responsibility of

ministers in the Constitution. No mechanism is provided either in
the Constitution or in the parliamentary procedure whereby a
motion of censure can be moved in parliament. A minister can be
questioned and criticised in the House but cannot be forced to
resign by passing a vote of censure. As a result, a minister can
easily engage himself into departmental corruption.

Second, Article 55(3) of the Constitution provides for collective

responsibility to the effect- 'The cabinet shall be collectively
responsible to parliament". But ironically enough this provision for
collective responsibility has become a soundless vessel because of
Article 70 of the Constitution. Under Article 70 no member of the
majority party has right to vote against the party and as result, the
cabinet is always sure that it will never be defeated on the floor by
motion of no confidence. So under the Constitutional arrangement
the cabinet cannot be made responsible to parliament. The
Constitution of Bangladesh, therefore, provides for parliamentary
form of government but not a responsible government; it is rather a
prime ministerial dictatorship.]

1 Scc. further. Chapters VIII. IX and XXIV

Constitütan, Constitutional Law and Politics 201

CHAPTER X

MINISTERIAL RESPONSIBILITY
The doctrine of ministerial responsibility is a cardinal principle
of the cabinet system of government. It is the doctrine which makes
this form of government a directly responsible government. This
doctrine is embodied purely in conventions which cannot be legally
enforced. Both the conventions relating to ministerial responsibility
(individual and collective) were developed during the eighteenth
and nineteenth centuries corresponding with the rise of parliament
and the decline in the power of the crown. And in both the cases the
practice was established long before the doctrine was announced.
The underlying philosophy behind it was to bring the executive
under the direct control of parliament.

The principle of ministerial responsibility means the political

accountability of the executive to parliament. From broader point of
view a British minister has responsibility in three ways - he is
directly responsible to parliament, indirectly to the people and
constitutionally to the King or Queen. Individual ministers are
responsible to parliament for the work of their departments and the
cabinet is collectively responsible for government policy. This
responsibility is direct in the sense that ministers have to answer
and explain departmental policies and decisions directly to
parliament and have to resign as soon as a vote of censure or of no-
confidence is passed. Secondly, ministers are indirectly responsible
to the people in the sense that they are not bound to justify their
actions directly to common people. But the parliament to which
they are directly responsible is the House of elected representatives
of the people. To be directly responsible to parliament is, therefore,
to be indirectly responsible to people. Thirdly, ministers are
constitutionally responsible to the king. This responsibility is a
legal one as opposed to political one. Because in Britain there has
been monarchy from time immemorial and froni legal point of view
the king is the fountain of all power and ministers are his
subordinate employees whom he can dismiss any time. But this
legal responsibility of ministers now is a theory only - a legal
fiction; the reality is quite opposite, for the absolute monarch is
202 Ministerial Responsibility

now a constitutional monarch who cannot, unlike in the past,

dismiss a minister according to his wishes ; his power is now
strictly controlled by conventions.

Kinds of Ministerial Responsibilities

Ministerial responsibility is of two kinds- individual
responsibility and collective responsibility.

Individual Responsibility
Every minister is the political head of a government department.
Individual, responsibility of a minister means that as the political
head of his department he is individually answerable to parliament
for all its acts and omissions. He must answer all questions relating
to his department and must give the House a full and frank
explanation of policy and decisions. He is personally responsible to
parliament for every failure of departmental policy and
administration whether it is the minister himself who was at fault
or a civil servant or if the failure resulted from a defect of
departmental organisation. He cannot get rid of his liability by
pleading that he acted in obedience to royal order or by imputing
the blame to civil servants. The minister must submit to the
judgment of parliament and if the failure is a serious one, he should
resign (or be ready to resign) from office without wanting for a vote
of censure.
According A.H. Birch the doctrine of individual responsibility
has two strands-
Firstly, the political head of a government and only the political
head, is answerable to parliament for all the actions of that
department. Secondly, the minister must receive the whole praise of
what is well done and the whole blame of what is ill' in the works of
his department, and that in consequence he must resign if serious
blunders are expressed.'

Birch, A.H. Representative and Responsible Gaveinnieni, (London: George Mien and
Unwin ltd. 1966). I'. 140
Constitution, Constitutional Law and Politics 203

Collective Responsibility
The wheel-power of the government in a Westminster type
parliamentary system is the collective responsibility of ministers in
parliament. In England this principle has so long been considered
indisputable and essential part of the constitution. Collective
responsibility means the accountability of the cabinet' or of the
government as a whole to parliament. Lord Salisbury gives a good
explanation of this principle -
'For all that passes in cabinet each member of it who does not
resign is absolutely and irretrievably responsible and has not right
afterwards to say that he agreed in one case to a compromise while in
another he was persuaded by his colleagues."2
Another better explanation can be found in Joseph
Chamberlain's statement -

Difference between the Ministry and the Cabinet

In British system there is a clear distinction heiween the Cabinet and Ministry . The
distinction is iwo-told-from the view-point of their composition and of their llmCtiOflS.
From the view-point of coniposition it call said that the M inistO consists of all
those members of parliament who are selected b y the Prime Minister to hold important
executive posts and who are to resign their posts when the Prime Minister resigns. tin
the other hand the Cabinet consists or such members of the Ministr y as the Prime
Minister invites to oii him in "tendering advice to the King on the government ot the
country". The Cabinet is. therefore. the inner circle within the Ministry . All Cabinet
niembers are ministers but all ministers are not cabinet members. From the view point
ot lunctions. Ministry and Cabinet differ in that whereas the Ministry never meets as a
bod y, the Cabinet frequentl y meets as a body. Ministers as such have duties onlys a
individual officers of administration, each in his particular portfolio. Cabinet
members have collective obligation i.e. to hold meetings. to deliberate, to decide upon
policy, to co-ordinate and in general to 'head up' the government.
The Constitution of l3an p ladesh also maintains the distinction between the Ministry
and the Cabinet. Article 56 of the Constitution says that 'there shall he a Prime
Minister and such other Ministers. Ministers of State and Deputy Ministers as may he
determined by the Prime Minister'. Again, Article 55 says. "There shall he a cabinet
tbr Bangladesh having the Prime Minister as its head and com prising also such other
Ministers as the Prime Minister ma y from time to time designate". Thus according to
Bangladesh Constitution the Ministry consists of tour types of ministers- (i) a l'rimc
Minister: (i) Ministers: (iii) Ministers of State and (iv) Deputy Ministers. And
according to Rules of Business (Chapter-4) only the Prime Minister and Ministers are
members of the Cabinet.
Quoted by Jennings. Cabinet Government,. 3rd cd. (London: Cambridge University
Press. 1969), P. 277
204 Ministerial Responsibility

"The decision (of the cabinet) freely arrived at should be loyally

supported and considered as the decision of the whole of
government. Of course, there may be occasions in which the
differences is of so vital a character that it is impossible for the
minority ............to continue their support, and in that case the
minority breaks up or the minority member or members resign."'
Sir Ivor Jennings says that the parliamentary aspect of collective
responsibility is that the defeat of a minister on any issue is a defeat
of the government. The proposals made by a minister whether or
not they have been approved by the cabinet, are the proposals of the
government. An attack on a minister is an attack on the
government.2
Harvey and Bather sa y s -
"In its decision, 'the cabinet is a unity to the House'. While a
minister can speak against any proposal in a cabinet meeting, he must
either support the policy decided upon or resign .... the cabinet stands
or falls together .... In practice, therefore, all that collective
responsibility means today is that every member of the government
must be prepared to support all cabinet decisions both inside and
outside the House."3
Lord Morrison says -
'All ministers whether members of the cabinet or not share a
collective responsibility including that for cabinet or cabinet
committee decision in the reaching of which they have taken in part
whatever .........he Government must stand together as a whole and
ministers must not contradict each other, otherwise cracks will
appear in the governmental fabric ....All this is part of contract of
service. It has to be endured as a condition of acceptance of office."4
Lord Morleys views are also noteworthy. He says-
"The cabinet is a unit -a unit as regards the sovereign, and a unit
as regards the legislature. Its views are laid before the sovereign and
before parliament, as if they were the views of one man. It gives its

Quoted by Jennings. cabinet Government, Ibid, P. 277

Ibid, I. 497
I larvey & Rather. The British Constitution and Politics, 5th ed. (London
MacMillan, 1990),1).239-40
Morrison, Lord. Government and I'arhament, 3rd ed. (London Oxford University
l'rcss. 1967). P. 74
Constitution, Constitutional Law and Politics 205

advice as a single whole, both in the royal closet, and in the

hereditary or the representative chamber .....The first mark of the
cabinet, as that institution is now understood, is united and
indivisible responsibility.''
From the above quotations it may now be concluded that
'collective responsibility' means essentially that the cabinet must
have the same and single voice as a 'unity to the House'. Every
minister must support all cabinet decisions both inside and outside
parliament. A minister who is not prepared to defend a cabinet
decision must, therefore, resign. And secondly. the tenure of the
cabinet or, in other words, the government as a whole depends on
the confidence of the majority in parliament. As soon as the
confidence is withdrawn from the cabinet, the government as a
whole must resign. All ministers, therefore, share a collective
responsibility for the major issues of policy and general conduct of
affairs. To put it into the words of John Alder, the principle of
collective responsibility has three aspects (i) it requires all
ministers to be loyal to the policies of the government whether or
not they are personally concerned with them ; (ii) it requires the
government as a whole to resign it defeated on a vote of confidence
in parliament; and (iii) it requires that cabinet and the government
business must be confidential.2

Purposes Served by the Principle of

Collective Responsibility
Both the principles of individual and collective responsibility
serve political purposes in constitutional working. But the
importance of collective responsibility is always more than that of
individual responsibility, for it relates to the wheel-strength of the
government as a whole. The principle serves the following
purposes.
Firstly, the original purpose or philosophy "underlying the
doctrine of collective responsibility is that the government should
be held continuously accountable br its actions, so that it always

Quoted by Appadoral. A. The Substance of Politics. I Ith ed. (Madras: Oxford

UiiiNcrsity Press. 1987). P. 257
Alder. John, ('ansi i/lit jonah and .tclnzi,zi.vtr,tjve Law. (london MacMillan Education
Ltd. 1989). P. 202
206 Ministerial Responsibility

faces the possibility that a major mistake may result in a withdrawal

of parliamentary support. 112 In other words, the principle of
collective responsibility is the means of assuring that the
government is in tune with public opinion.
Secondly, the principle provides the key-strength to the unity
and stability within the government. The real executive is the
cabinet and collective responsibility ensures that the cabinet
presents a united front before parliament. "Cabinet is by nature a
unity and collective responsibility is the method by which the unity
is served" It is collective responsibility which ensures that the
cabinet works as a team and hence a minister who is not prepared to
defend a cabinet decision must, therefore, resign. If a minister does
not resign lie is responsible. The policies and programmes of the
cabinet have to be supported by each minister. Even if there may be
differences of opinion within the cabinet, once a decision has been
taken by is the duty of every minister whether member of the
cabinet or not to stand by it and support it both within and outside
parliament. If the cabinet faces any criticism in parliament
concerning any of its policy every minister must come forward and
speak in defence of the cabinet policy. The principle, therefore,
ensures that the cabinet members 'must be all in the same story'
they must swim and sink together. This unity of the cabinet enables
the government to retain easily the support of the majority in the
House.

Thirdly, the collective responsibility of the cabinet also helps

greatly in maintaining party unity and its cohesion. Because if the
ministers were allowed to contradict the cabinet decision it would
certainly open a cabinet split. "Cabinet split', as Jennings says," may
become a party split and a party-split may lose the next election".2
Cabinet Government is a party government and its members come
into office under the leadership of a person whom the party
acclaims. All ministers stand for the political programme of the
party and represent the uniformity of political opinion. They must,
therefore, have the same voice otherwise the fall of the cabinet

Lask, quoted by M.I. Jam. /0</hi/i COfl5(jtU!iOnU1Ll<7i$, Ibid., P. 103

Ibid. P. 103
Jennings. Quoted b) Kapoor. AC Select ( ' onsliluhions, Ibid. P. 65
Constitution, Constitutional Law and Politics 207

will result in the fall of the party and consequently its political
programme.

Fourthly, collective responsibility of the cabinet helps greatly in

maintaining, the stability in public opinion. Because the public
opinion never wants to see disagreement among ministers. If
ministers are allowed to contradict each other, cracks will appear in
the government fabric which may lead to an immediate swing of
public opinion. This principle, therefore, compels ministers to be
discreet and prevents the sort of confusion that sometimes arises in
other countries, for instance the United States, when government
spokesmen make pronouncements which reveal differences of view
within the administration)
Fifthly, it serves the purpose of advising the King. Because the
cabinet is legally bound to offer unanimous advice to the sovereign
even when its members do not hold identical views on a given
subject. It is for this collective responsibility that the cabinet can
render unanimous advice to the sovereign.
Harvey and Bather says that the doctrine of collective
responsibility has following practical advantages
First, it counteracts departmental separation, for each minister
has to be concerned with policies of other departments.
Secondly, it prevents the policy of one department being
determined unilaterally. Since it is the cabinet as a whole which
decides, ministers are less likely to be over-influenced by their civil
servants.
Thirdly, it ensures that cabinet decisions are based on principles
and not on personalities.2

Difficulties with Collective Responsibility

The most significant point to be mentioned about collective
responsibility is that this traditional doctrine has been subject to
much debate. The gist of the criticism is that the doctrine is out of
line with practices of modern government and far from making

Birch. A.] 1. Repiese,iwi,r' and Responsible Gaver,nne,u, Ibid. P. 138

1 larvc & Bather. The British C onsliI,uian ann' /'olitics. Ibid. P. 40
208 Ministerial Responsibility

government accountable; in fact it shields government from public

accountability. Originally the doctrine was developed with a view
to subjecting the executive to the control of parliament. But now
conversely it operates to strengthen the power of the prime minister,
and to reduce the parliament's control. The main reason behind this
reversal lies in the disciplined party system and in the size and
complexity of modern government.

Purposes Served by the Doctrine of Individual Responsibility.

The doctrine of individual responsibility is based upon the
fundamental doctrine that 'the king himself can do no wrong'. As
the personal responsibility of monarch was withdrawn ; he was
turned into a titular head and parliaments supremacy was
established, it was now ministers who, on behalf of the king, came
to be responsible before parliament for their individual
departmental acts. Like collective responsibility the original
purpose behind the principle of individual responsibility was the
same i.e., to bring the political head of every government
department under the direct control of parliament. It therefore,
serves a vital purpose of liberal democracy. There being no
separation of powers in parliamentary form of government, the
actions of the administrations are controlled by peoples'
representatives in parliament through this doctrine of individual
responsibility.
Secondly, the Cabinet is responsible to parliament for the
general policy of the government. This does not, of course, mean
that each and every decision must be taken by the cabinet. Every
individual minister as the head of a ministry has, therefore, personal
responsibility for every action taken or omitted to be taken in his
ministry.
Thirdly, the doctrine serves another purpose. The official who
cannot defend himself publicly is protected from attack. There is no
direct link between civil servants and parliament. Civil servants,
therefore, cannot be brought under the direct control of parliament.
It is. therefore, the minister, the political head of every ministry
who is a member of parliament must be accountable for every
mismanagement of public affairs in his department.
Constitution, Constitutional Law and Politics 209

Fourthly, by making a minister ccountable to parliament for his

departmental acts a democratic chain is fulfilled. Because civil
servants are not elected by the people and hence the elected head of
a department, i.e. the minister should be made responsible. It,
therefore, serves another purpose of ensuring political neutrality of
civil servants.
Fifthly, the doctrine prevents the minister from trying to evade
criticism of his own actions by shuffling the responsibility on to the
subordinates. No minister can absolve himself by passing on the
blame to someone else or saying that what was done had not been
authorised by him. This doctrine, therefore, compels the minister to
keep always vigilant eyes over the entire administration of his
ministry.

Difficulties with Individual Responsibility

The traditional spirit of individual responsibility lies in the
sense that a minister must resign whether or not he is personally to
blame if serious fault is attributed to his department. If he does not
resign it is the prime minister who can force him to resign ; or if a
vote of censure is passed in parliament against him, he must resign.
This is the punitive effect of individual responsibility. But most of
the modern constitutional experts are of the view that in reality the
principle of individual responsibility does not have any punitive
effect) This is because the modern political practice do not entirely
correspond with this effect of the doctrine. In practice very few
ministers have resigned in response to parliamentary criticism of
the work of their departments. Innumerable errors have been
exposed but in most cases the minister concerned has simply
refused to offer his resignation. Lowell says that no vote of censure
was passed in the House of Commons since 1866.2 And the
resignation in response to criticism occurred from time to time
during the hundred years (1855-1955) were not more than 20 but
the number of ministers against whom parliamentary criticism were
made during this time were far more. 3 This is because it is not

0 Hood Phillips, John Alder, Herman Finer etc.

Lowell, A. Lawrence. The Government of England. Vol. 1
* (New York: The Mackmillan Company, 1910). P. 73
' Turpin. Collin. Ibid, P. 430

14
210 Ministerial Responsibility

strictly obligatory on the part of a minister to resign when he is

criticised in parliament. Whether a minister has to resign or not
depends upon a variety of political factors including the
temperament of the minister, the attitude of the prime minister, the
mood of the party and the toes of the opposition. In most cases it is
seen that if severe criticism does not come from the party and the
concerned minister is loyal to the prime minister, he need not
resign. Professor Hood Phillips says that an examination of
ministerial resignation in the past century shows that the doctrine of
indivijual responsibility in practice has no punitive effect, because
either
i) the erring minister who resigns is appointed to another
post; or
ii) a timely reshuffle of a ministerial posts render resignation
unnecessary; or
iii) a minister who is unpopular with the opposition is
protected by the solidarity of his colleagues. 1

Method of Enforcing Ministerial Responsibility

Methods of enforcing ministerial responsibility may be
classified into two groups
A. Traditional Methods of Scrutiny ; and
B. Modern Methods of Scrutiny.

A. Traditional Methods of Scrutiny

They are folloing:
1. Parliamentary Questions
2. Vote of Censure
3. Cut Motion
4. Adjournment Motion ; and
5. No-Confidence Motion.

Phillips, O'llood, Ibid, P.310

Constitution, Constitutional Law and Politics 211

Parliamentary Questions
The responsibility of ministers to the House of Commons
involves a constant control of the House over the government. One
of common and effective devices of ensuring this control is asking
questions to ministers. Parliamentary questions tend to keep the
ministers constantly conscious of the fact that they will be called
upon to give an account of what they do. A definte period is
allotted at every sitting to put questions to ministers. Subject to
some conditions any member of the House of Commons may
address a query to the prime minister or to any other minister. The
device of asking questions has some important merits.
Firstly, it brings the work of the various departments of
government under the public scrutiny. As professor Lowell says-
question time is a search light upon every corner of the public
service."] It is the most effective check on the day-to-day
administration. According to Erskine May, the Parliamentan
Question in an useful tool for 'extracting information' and 'pressing
for actions.12 Questions in brief, bring to light the activities of
government and subject government to public scrutiny and this is.
according to Herman Finer, 'the fundamentally characteristic Britisi,
way of keeping the cabinet painfully sensitive to public opinion'.3
Secondly, it enables a member publicise a grievance. He can
raise special local problems affecting his constituency. As professor
de Smith says- 'a question to a minister is rather a method of
ventilating a grievance than of securing remedy'.4
Thirdly, parliamentary questions are also a means of exerting
pressure on ministers to achieve a particular outcome. Oral
questions in full view of the press and other media can have a
compelling influence on a minister and he may be able to see new
merit in a case that he had not seen before. It, therefore, serves to
bring particular issue to the attention of ministers.

Quoted by Ilarvey & Bather, Ibid, P.146

May, Erskine T. (ed. Sir Charles Gordon). Parliamentary Practices. 20th ed.
(Butterworths. 1989)
Quoted by Kapoor, A.C. Ibid. P. 160
Smith, de and Brazier. Constitutional and Administrative Law, 6th ed. (London
Penguin Books. 1989), P.291
212 Ministerial Responsibility

Fourthly, parliamentary questions enable the public to get,

through their representatives, the information about day-to-day
administration of the government. Information over various
ministries help to build up strong public opinion.
Fifthly, parliamentary questions mitigate the danger of
bureaucratic habits, because 'men who have to answer day by day
for their decisions will tend so to act that they can give account of
themselves'. As answers to parliamentary questions are prepared in
the ministries the bureaucrats become careful in advising the
minister.
Sixthly, Parliamentary quetions helps back-bencher MPs to put
an effective control over ministers. It develops a vigilant type of
responsibility both among the ministers and back-benchers. It is the
device whereby the 'back-benchers take a delight in heckling a
Minister."
As to the importance of parliamentary questions professor de
Smith has given a beautiful explanation-"for a few minutes the
House of Commons comes to life audibly and visibly wit; feigned
or genuine outrage, cheers and jeers intrude upon the solemnity of
the proceedings ; government and opposition are briefly locked in
fascinating verbal combat; the prime minister and the leader of the
opposition may gain or lose a point or two in the public opinion
poll; a backbencher shows his ministerial potential and the House
wonders how much longer the Minister of Cosmology can last.2

Prime Minister's Question Time

In the House of Commons the British Prime Minister has to
answer questions twice a week. The PMQT serves many purposes.
First, it focuses public attention on parliament. As media coverage
is extensive, the people get to see and notice their representatives
and their government actually functioning. Second, the PMQT is
powerful tactic to strengthen the PM's control on his cabinet
colleagues. As the PM could be questioned on any aspect of
government policy, the departmental ministers are likely to be

1 Jennings, quoted by Choudhury. DUara. ibid. P.118

2 Smith. de. & Brazier. Ibid, P. 291-292
Constitution, Constitutional Law and Politics 2 13

careful in discharging their duties; Third, the PM can use the

opportunity of question time to highlight points of the government.
Fourth, it develops a vigilant type of responsibility both among the
PM and the back-bencher MPs. Fifth, it makes the PM aware of all
eventualities of government policies. Since the PM does not know
what supplementaries would be asked, his staff prepare for all
eventualities. They look at the constituency of the MP asking the
question, try to anticipate the problems he may be facing, the issues
of his interest and any other worries he may have, in this process
the PM is acquinted with the Member and his or her constituency.
As to the PMQT a former Leader of the House of Commons
Richard Crossrnan described it saying:
"The whole British politics is centered there. The man that's
running the Executive has to be there at the dispatch-box, has to
present himself, has to fight the contender for power, and the whole
press and television will report that evening on what happened to
him. He is being tested and the House of Commons feels itself to
be participating in the test."1

Vote of Censure
Another device for holding ministers accountable is the motion
of censure, ordinarily directed at individual ministers and
specifying particular acts or policies for which they are regarded as
responsible. Such a motion may be offered by any member who can
gain the floor for the purpose, and they may lead not only to
embarrassing debates but also hostile votes. If any such motion is
passed in the House the minister concerned has to resign.

Cut Motion
During the budget discussion a token cut may be made by the
opposition and if such a motion is moved and p assed in the House
the cabinet i.e. the government as a whole must be prepared to
resign.

Alderman. R. K. (1996) Prime Minister's Question in the British House of

Commons'. The Parliamentarian, Vol. 77, No. 3 pp. 290-2
214 Ministerial Responsibility

Adjournment Motion
After questions and before the commencement of public
business, any member may move the adjournment of the House for
the purpose of discussing ' a specific and important matter that
should have urgent consideration'. If the motion is supported by at
least 40 members and the speaker has agreed that the matter is
definite and urgent, a debate will take place. The government will
oppose the motion and if it fails in voting it must be prepared to
resign.

Vote of No-Confidence
The Ministers are at all times subject to challenge upon general
policy. Because the leader of the opposition may move a resolution
of no confidence against the cabinet, in other words, against the
whole government. It the motion is supported by a required number
of members a debate will take place and then the motion will face
voting. If the votes recorded shows that the government is in
minority it must resign.

B. Modern Methods of Scrutiny

The above mentioned methods are traditional methods of
enforcing ministerial responsibility. But now-a-days governmental
activities have become more complex and have been expanded far
wider. Through traditional methods the legislature now is not
capable enough to make full inquiries into matters of interest to it or
to consider matters in detail. This created need for far greater
parliamentary scrutiny than that which could be achieved by
traditional methods. To that end some modern devices have
developed to carry out the task of continuous scrutiny and
investigation of the executive. They are
1. Control by Committee System; and
2. Control by Ombudsman.
Constitution, Constitutional Law and Politics 215

Control by Committee System'

Control of executive through the working of the committee
system is now considered the most effective device of ensuring
ministerial responsibilities. "Investigation by committees" says
Laski, "has been one of the most vital techniques contributed by the
parliamentary system to the methodology of representative
government ; and it has been possible only by the fact that the
parliamentary system exists." It is the committee system which, as
Garrett says, has "shifted the style of the House of Commons from
theater to serious and penetrating scrutiny of the government".
There are 16 Departmental Select Committees working in the
House of Commons. They examine the expenditure, administration
and policy of the relevant government departments (ministry) and
its associated public bodies. They can take evidence in public ; send
for persons including the departmental minister, its officials, or any
one it feels can enlighten them in the investigation it is conducting.
The reports of these committees are published and given in press
and also tabled in the House. If any report gives a serious blunder
about maladministration in a ministry the government has to
correctify it quickly otherwise it may face an uproar and even a
hostile vote in the House.

Control by Ombudsman
A post of Parliamentary Commissioner i.e. Ombudsman was
created in the House of Commons under the Parliamentary
Commissioner's Act, 1966. It is an office of the House of Commons
independent of the executive. Its function is to investigate
complaints of maladministration made to it by members of
parliament against any person acting in the service of the state.2

Ministerial Responsibility and their Enforcement under the

Constitution of Bangladesh
1. Parliamentary Questions
Chapter VIII of the Rules of Procedure of Parliament provides
for questions and short notice questions. The first hour of every

Details of committee system. See. Chapter XI

2 For details . see, Chapter XVIII
21 6 Ministerial Responsibility

sitting is fixed for the asking and answering questions. A member

can make questions to a minister concerning any matter of
administration within his ministry. Questions may be asked by
giving a 15 day's notice.

2. PMQT
The PMQT is not mentioned in the Rules of Procedure. However, the 7th
parliament introduced a major change in the parliamentary practice by
introducing the PMQT in 1997. Prime Minister Sheikh Hasina answered
questions of MPs in the House for 30 minutes every Tuesday. It is the
most lively scene both for the MPs in the House and audiences in
television. However, the opposition BNP were not helpful with this new
procedure of accountability. It's member did not attend the session when
the PMQT was being held; the opposition leader even did not confront
the PM during this PMQT. In the 1 8 parliament the same is happening
with the AL in the opposition. The success of any device of
accountability depends more on the willingness of parliamentarians than
on the rules or procedure. In the 5th parliament Khaleda Zia did not attend
sessions regularly. Even whenever present, she rarely took part in the
proceedings. Her reluctance to take part in parliament proceedings caused
serious risk not only in the opposition but also among many government
back-benchers'. In the 8th parliament under the leadership of the Prim e
Ministere Khaleda Zia there was no effective PMQT as the oppistion
party boycotted the parliament for most of tis tenure and the hole
parliament remained as a voice of the government in power.

3. Other Motions
There are three types of motions apart from adjournment and no-
confidence motions. They are:
a. Call-attention motion;
b. Discussion for short duration;
c. Half-an Hour Discussion.
The full discussion of all the motions is beyond the limit of this
book now. The author would consider this in the next edition, if
possible.

Ahmed. ibid.
Constitution, Constitutional Law and Politics 217

4. Adjournment Motion
Chapter X of the Rules of Procedure of Parliament provides for
adjournment motion. Under Rule 61 a motion for an adjournment of the
business of the House for the purpose of discussing a definite matter of
recent and urgent public importance may be made with the consent of the
speaker. If the motion is supported by at least 25 members and the
speaker has agreed, that the matter is of recent and urgent public
importance, a debate wiI take place. But unlike in true parliamentary
system the motion cannot be given on votes in the House. Thus though
there is provision for adjournment motion it has lost its importance.

S. Vote of Censure
As mentioned earlier there is no provision for motion of censure in
the constitution of Bangladesh. No motion of censure, therefore, can be
made against a minister for any corruption in his ministy. The
constitution of Greece specifically provides for vote of censure. I It is to
be mentioned here that constitutions of some countries with
parliamentary system e.g. India, Japan etc. do not provide for specific
provision of vote of censure. But parliamentary culture like conventions
n British constitutional system has, from the very beginning, developed
in these countries to the effect that whenever a minister is seriously
criticised for maladministration or corruption in his department, he
willingly resigns ; there is no need to pass a motion of censure. But in
Bangladesh such a positive and responsive political culture is yet to
develop.

6. Cut Motion
Provisions for cut motions are provided for in Rules 118, 119, 120
and 121 of the Rules of Procedure. According to Rule 118 three types of
cut motions may be moved—'Disapproval of Policy cut, 'Economy cut'
and 'Token cut' may be moved by any member in relation to any Money
Bill or Finance Bill. These motions are given on votes.

7. No Confidence Motion
The strongest device for ensuring collective responsibility of the
cabinet or the government as a whole is the motion of no confidence.

Article 84
21 8 Ministerial Responsibility

Article 57(2) of the Bangladesh constitution provides that if the prime

minister ceases to retain the support of a majority of the members of
parliament, he shall either resign his office or advise the president to
dissolve parliament. On the basis of this constitutional provision the
Rules of Procedure provides for in Rule 159 the provision of motion of
no-confidence against the government. If the speaker is of opinion that
the motion is in order and if it is supported by at least 30 members, a
debate will take place. After debate the motion will be given on votes and
if the majority votes in favour of the motion, the government as a whole
must resign. It seems, therefore, that this provision has been maintained
keeping line with parliamentary spirit. But ironically enough, this
provision is nothing but a mere facade of a device of ensuring collective
responsibility. Because due to barricade created by article 70 of the
constitution no member of the majority party has right to vote against the
party and as a result neither a motion of no-confidence nor a cut-motion
works as a threat to government. Article 70 makes. the government
always sure that it will never be defeated by motion of no-confidence.]
Thus ministerial responsibility cannot be ensured in Bangladesh.
The first no-confidence motion in Bangladesh was moved in the 6"
session of the 5th parliament against the BNP Governernent headed by
Khaleda Zia. The notice of the motion was given on 5" August 1992; on
9" August the motion being supported by more than 30 MPs the speaker
fixed the day (12" August) for debate and discussion. After debate the
motion was put on vote and was rejected by the House on a division vote
by 168-122.
Now comes the question of modern modes of scrutiny i.e. the
committee system and the department of ombudsman. Article 70 of the
constitution provides for a department of Ombudsman. A law has been
passed long ago to implement this provision but so far this law has not
been made effective. As a result no control of executive is possible
through ombudsman.2
As to control by committee system it can be said that there are some
standing committees on ministries in our parliament which are similar to
the Select Committees in the House of Commons. But these ministerial
standing committees cannot function properly. Details of committee
system have been discussed in chapter .Xi.

For details, see. Chapter VIII

2 For Ombudsman, see, details, in Chapter XVIII
Constitution, Constitutional Law and Politics 219

CHAPTER Xl

COMMITTEE SYSTEM IN BANGLADESH

In a parliamentary system of democracy one of two important
functions of parliament is ensuring the accountability of the
government. This is done through two categories of techniques:
individual and collective. This collective device is worked out
through an effective committee system. Modern legislatures are
unthinkable without a committee system. Committees exist to
meet a practical need. The House as a whole is too widely a body
to make full inquiries into matters of interest to it or to consider
matters in detail pressure of circumstances and in particular the
increasing range of subjects with which parliament is concerned,
has led to the steady development of committees t . Committees are
considered mini parliaments within the parliament.

Different Types of Committees:

In most parliaments committees may be of two main
categories:
a) Standing Committees (which are permanent in nature); and
b) Ad hoc or Special Committees (which are temporary in
nature).

Permanent Committees
These committees are mainly appointed for the duration of the
parliament. They are specialized in the sense that each is concerned
with one particular branch of activity such as finance, foreign
affairs, education etc.

It is to be mentioned that in British Parliament departmental

select committees are permanent in nature; they are elected for the
duration of the whole parliament. On the other hand, Standing
Committees in the House of Commons are ad-hoc; bills are
commonly referred to them and their terms expire when they
report on bills to the House. In Japan, Malayasia, Bangladesh and
India Standing Committees are permanent in nature.

Committees of Parliament, CAC 1996

22) Committee System in Bangladesh

Ad-hoc or Special Committees:

Thc are established to deal with a particular matter and cease
to exist as soon as they have made a report to the House. Ad-hoc
or Special Committees are found alongside permanent committees
in most countries.

Evolution of Committee System

The growth of governmental functions in recent time has
created a need for greater parliamentary scrutiny than that which
could be achieved b y traditional methods like question-making etc.
This need has resulted in committee system. Control of executive
through committee system actually developed in the USA almost
from the first session in 1789 which later came to be blended in
parliamentary system in the latter part of the 20th century. By 1919
the House of Representative in the USA had 63 Committees and
the Senate 74. After the Second World War the number of
committees declined to the present level of 23 in the House of
Representative and 18 in the Senate. The Congressional
Committees have numerous Sub-Committees and the whole
nature of the system is both elaborate and complex. It performs a
range of legislative functions, budgetary functions as well as that of
serious scrutiny of both the Executive and matters of public
concern. in fact, the major work of Congress is said to be in
committees.
It was only in 1978 when the House of Commons set up 16
departmental Select Committees whereas the Bangladesh
Constitution makers had felt the need for this system in 1971. We
will see that though in thinking and inserting provisions for
Committees Bangladesh was well ahead of all other Parliamentary
System in the Commonwealth, the effective working of the
Committee has not yet been developed.

Advantages of Committee System

An effective committee system helps developing and
functioning parliamentary democracy in many ways:
First, since committees can take evidence in public, send any
person including ministers to justify their actions; since reports of
committees are published, given in press and also tabled in the
Constitution, Constitutional Law and Politics 221

House, departmental ministers and bureaucrats cannot adopt

unfair means or do corruption; if any report gives a serious blunder
about maladministration in a ministry, the government has to
correctify it quickly; otherwise it ma y face even a hostile vote in the
House.

Second, committee functions give message to the general public

about efficienc y and transparency in the governmental
functionaries and people can decide whether they will elect the
same government or not in the next election.

Third, it is the nature of parliamentary system that once a

government is formed a distinct difference develops between the
government i.e. the ministers and their own party MPs. The
backbenchers feel left out as they have no role in the policy,
legislation or anything else. This creates an unnecessary hostility
towards their own government and results in party intrigue and
backbiting which, in turn, leads to the government developing a
siege mentality and being over-sensitive to criticism.' Both these
differences and unnecessary hostility can be mitigated if all MPs
are given role to play and this is possible by proper committee
functioning. In committees backbench MPs can effectively play
their role to scrutinise the government; though policy-making is
the sole prerogative of the ministers, it is committee system
through which other MPs can examine and criticise those policies
and can play role in ensuring their implementation in the spirit it
was formulated.

Fourth, it is through the functioning of the committee system

that bureaucracy comes under the direct scrutiny of the parliament
since the committee concerning a particular ministry along with its
associated bodies can send for any official or bureaucrat to appear
before it to justify his action or send for any paper or document.

Choudhury Nazim Kamran, The Mirage of Parliamentary Democracy, Daily

Star, June 2. 1996.
222 Committee System in Bangladesh

Committee System in Bangladesh

The sources of Parliamentary Committees in Bangladesh are
two: (a) Constitution; and (b) Rules of Procedure of Parliament.
Article 76 (1) of the Constitution of Bangladesh provides that
parliament shall appoint the following Standing Committees:
(a) A Public Accounts Committee;
(h) Committee of Privilege; and
(c) Such other Standing Committees as the Rules of Procedure
of Parliament require.

Again, Article 76(2) states that in addition, Parliament shall appoint

other Standing Committees to -
(a) examine draft bills and other legislative proposals;
(b) review the enforcement of laws and proposes measures for
such enforcement;
(c) investigate or inquire into the activities or administration of
a Ministry etc.
(d) perform any other functions assigned to it by Parliament.

It is interesting to note that all three parts of Article 76 i.e.

76(1), 76(1)(c) and 76(2) authorise Parliament to form or appoint
Standing Committees only (i.e., Permanent Committees as Bengali
reading stands). There is no indication or source of any Ad-hoc
Committee or a Committee other than Standing Committees in the
Constitution. Neither has there been any Constitutional
interpretation or explanation of the term "Standing Committee" in
Article 152 of the Constitution.

Rules 187 to 266 of the Rules of Procedure deal with Rules

regulating committees. These Rules provide for as many as 14 different
committees which include two committees (Public Accounts Committee
and Committee on Privilege) specified in Article 76(1) of the
Constitution. Out of these 14 committees Select Committee on bills,
Standing Committees on certain other subjects and Special Committees
need explanation. Select Committee on bills is an ad-hoc committee: this
is evident from the treatment given in Rule 189 and 225. Secondly,
Standing Committees on certain other subjects mean that each Ministry
will have one Standing Committee. Lastly, Special Committees under
Rule 266 is a kind of ad-hoc committee. The rest of the committees are
all standing (permanent in nature) committees.
Constitution, Constitutional Law and Politics 223

Structure of Parliamentary Committees in Bangladesh:

Ministerial
Committees 35

PAC
2 Committee on I 3
Financial Estimates I
PLC
.:i:liflitte:_J__

I Committee on
Privilege
Stan- Other I 2 Committee on
Investigating 3
ding Committees
Petition
3. Committee on
Government
Corn Assurance
ittees

House & I Business Advisory

Service Committee
Committee 10 2. Committee on Private 5
Members Bill
3. Committee on Rules
of Procedure
4. House Committee
5 Library Committee

Committee on Bills
Ad-ho 2
Comm
ittee
Special Committee
224 Committee System in Bangladesh

Three Financial Standing Committees

a. Public Accounts Committee;
b. Public Undertaking Committee; and
c. Committee on Estimates

The main function of the PAC as per Rule 233 is to examine:

-the annual appropriation accounts of the government;
-the income and expenditure of the government;
-that the expenditure conforms to the authority which
governs it and is applicable to the service or purpose to
which they have been applied or charged etc.

According to Rule 238 the function of the Committee on Public

Undertakings is to examine the working of Public Undertakings
specified in Schedule IV of the Rules of Procedure. Schedule IV
has a list of 24 corporations, in others words, Public Undertakings.
This Committee in particular examines and report on:
-the reports and accounts of the Public Undertakings;
-the reports of CAG on the Public Undertakings; and
-remedy and irregularities and lapses of the Public
Undertakings and recommend measures to make them
corruption-free.

As per Rule 235 the function of the Committee on Estimates is to-

-report improvements, efficiency and reforms in
administration consistent with the policy underlying the
estimates.
-examine whether the money is well laid out within the
limits of the policy implied in the estimates etc.

PAC examines the accounts showing the appropriations of the

sums granted by parliament for government's expenditure. The
purpose of the PAC which base its functions on the audit reports
made by CAG is that the grants made to different departments are
used only for the purposes set out in the estimates. On the other
hand, the Estimate Committee has nothing to do with scrutinising
accounts; it rather examines the details of the estimates presented
to the parliament in the budget and may suggest alternative policies
Constitution, Constitutional Law and Politics 225

with a view to ensuring efficiency and economy in the

administration.

The Public Accounts Committee

The post-budgetary financial responsibility of the government
is enforced through two powerful organs— the Comptroller and
Auditor-General (CAG)— a constitutional body and the PAC in the
parliament. The main function of the GAG is to audit the
accounts of the Republic to ensure that the moneys approved by
parliament are spent for the purpose intended and in an effective
and efficient manner. After such auditing the CAG lays its reports
to the parliament directly. In all democratic countries the GAG is
an officer of parliament; he is responsible only to the parliament.
And since responsibility to audit all the public accounts is vested
upon him, he and his whole staff should be fully independent of
the executive. The complaints or observations made in the report
by the CAG is again scrutinised by the PAC of the parliament and
in doing this examination the PAC can question the accounting
officers of the concerned ministries; it can also take evidence in
public; question other witnesses. So for the success of such a
scrutiny the PAC, as like as the CAG, should be made democratic.
In all democratic countries PAC is headed by a senior MP of the
opposition. But in Bangladesh though PAC was formed in the first
parliament, it was headed by a Treasury Bench Member. Again,
unlike other democratic countries, the CAG has been made
responsible to the president and not to the parliament) Again,
unlike the system • of other democratic countries there is no
provision in Bangladesh for consultation with the PAC in respect
of the appointment of CAG. The whole staff of CAG including
his audit section has been kept under the executive control of the
Ministry of Finance. Again, unlike in India & Britain the CAG in

See section 2(2), 6(1) of the Bangladesh Comptroller and Auditor-General Order
(P.O. No. 15 of 1972). The provisions in the Order expressly violated the
constitutional provisions. I asked Dr. Kamal Hossain who was then the Law
Minister how he could suggest for such an unconstitutional law? Dr. Hossain by-
passed the question saying-"If you think it unconstitutional then go to court and
the court will declare it unconstitutional.' I made a counter question—"Sir, do you
want to say that this Order is constitutional and valid?" He told that the provisions
of the Order may be interpreted in two ways.

15
226 Committee System in Bangladesh

Bangladesh does not have authority to conduct performance audit;

it only prepares annual audit report.

Thus from the very outset this vital organ of constitutionalism

has been kept handicapped. And still the CAG is in such a
handicapped position. The success of the PAC especially in-respect
of its financial control over executive depends mostly on the
Fruitful activities of the CAG and since the CAG is tightly
handicapped so has been the role of the PAC.

The PAC had 3 meetings in the first parliament; 9 in the

second; 52 in the fifth and 103 in the Th parliament. This
Committee had not submitted any report in the first parliament. In
the second parliament it , had submitted 1 report. During the
martial law regime of Errhad an adhoc PAC prepared three
reports. The 3rd parliament did not form PAC. In the 4th
parliament the PAC submitted 2 reports. In the 5th parliament it
submitted 4 reports. In the 7th parliament PAC submitted 5
reports 1 . In advanced countries like the USA, UK the PAC is very
active and effective in seeing that the money sanctioned has been
spent with economy, efficiency and for the purposes. But in
Bangladesh such an important institution has not been properly
used, for: (a) the legislature itself was not in existence for many
years; (b) even when the legislature was in existence, the PAC was
not appointed in time; (c) tightly handicapped position of the
GAG. Since the audit section of the GAG has been kept under the
executive control of the Finance Ministry, the most serius problem
in the functioning of the PAC has been caused by the government.
Because the government had not regularly submitted the audit

The PAC in Britain submits about 40 reports a year in the House of Commons and
a selection of them are debated on one day per session. The PAC in the 7th
parliament was chaired by A.S.M. Akram, a government party MP. I asked him
about the progress of the functionin g- of the PAC. He told that the committee like
its predecessor was facing a huge backlog of audit reports and a great portion of
their time was being spent in disposing of these old cases. The Committee met 4
times a month. Does the Committee has any plan to meet more frequently to settle
the pending cases? In response to this question he told that the members seemed to
be reluctant to meet even four times a month, for they were very ill-paid for their
committee tuinctions.
donstitution, Constitutional Law and Politics 227

reports to the legislature. Thus 17 audit reports on Defence,

Railway, Foreign Mission, Postal Department, T & 1' Board, Semi-
Government and Commercial organisations were submitted to the
parliament after 14 y ears on the 11th July, 1990 and the Finance
Minister could not put forward satisfactory explanation for such
unusual delayed period during which hundreds of pages of the
reports were destroyed by worms and insects1.

Committee on Estimates
Mr. Nizarn Ahmed has made following observations on the
importance of the Committee on Estimates:
The Estimates Committee (EC) has traditionally remained very
inactive. Although different parliaments have routinel y set up
the EC, none has yet produced any report. Nor does its activity
receive any special recognition. But theoretically speaking, it has
better potential than the other financial committees or DPCs to
ensure fiscal discipline and economy in expenditure. The fiG can
iwo moto examine any estimates; herein lies its main strength. It
can also check the estimates throughout the financial year and,
in particular, before the expenditure is actually incurred, and
suggest the economic use of resources. Until recently, the
potential remained mostly untapped The EC, however, had a
new beginning after the election of the seventh parliament. As a
strategy to check the misuse of resources and embezzlement of
public funds, the EC of the seventh parliament stressed on
scrutinising the estimates (and use) of development expenditure.
The EC, in fact, identified and documented widespread
corruption in different government organisations. It compiled a
list of irregularities for each ministry; in monetar y terms, the loss
appears to be staggering. The fiG set up seven subcommittees to
probe into corruption and mismanagement of resources in
different organisations."

The Estimate Committee had 9 meetings in the first parliament, 7

in the second parliament, 26 in the fifth parliament and 25 in the

The ltseJ'aq. daily Bengali Newspaper 12.7.1990

Ahrncd, Nizam, The Parliament of' Bangladesh, Ashgate Publishing, Gower
House, Harits, UK, 2002. at p. 151
228 Committee System in Bangladesh

7thparliament. However, this committee has not produced any

report in any parliament.

The Public Undertaking Committee

This Committee had no meeting in the first parliament; it had
84 meetings in the second parliament; 48 in the fifth parliament
and 20 in the 7th parliament. It had produced I report in the
second parliament; 2 in the fifth and 26 in the 7 11, parliament. As to
the importance and functioning of this committee Mr. Nizam
Ahmed has made following observations on the activities of the
PUC:
"The PUC of the fifth parliament specifically identified the
organisations and persons responsible for creating mismatch in
running the public sector organisations and made specific
recommendations to rectify them. In its second, the PUC
unveiled widespread corruption in the largest nationalised
commercial bank in the country. It also accused, a ruling party
MP, who was the chairman of that bank, of manipulating the
rules and granting millions of Taka as loans to his friends Sand
relatives. The PUC of the seventh parliament however,
remained atypical in one important respect; it conducted more
inquiries than all of its predecessors, although their actual impact
is difficult to measure."t

Departmental Standing Committees

In both Presidential and Parliamentary form of governments
Departmental Standing Committees (DPCs) work as constant
watchdog against the departmental functions. The departmental
select committees in British Parliament has wider power to
exercise control over the government departments. Ministers can
not be members of these standing committees as it is their policies
that are to be scrutinised by these committees. It is the function of
these committees to scrutinise government policy. They regulate
their own meetings and can send for persons including ministers to
appear before it to give evidence; they can send for papers and
hear evidence in public. The reports of these committees are

1 Ibid,atp. 151
Constitution, Constitutional Law and Politics 22

usually by consensus and are sent to the government as advice.

The reports are also published.

Functions
The sources of the departmental standing committees are
Article 76 (2) (c) of the Constitution of Bangladesh and Rules 246,
247 and 248 cf the Rules of Procedure.

Rule 248 stipulates that departmental standing committees

shall meet once a month and their functions would he:
- to examine any bill or other matter referred to
it by parlimcnt;
- to review the works relating to a Ministry which
falls within its jurisdiction;
- to inquire into any activity or irregularity and
seous complaint in respect of the Ministry etc.

Rule 246 also states that these standing committees may:

examine draft bls and other legislative
proposals;
- review enforcement of laws and propose
measures for such enforcement etc.

Examination of Rules 187-218 reveals that DPCs have

been given ample and wide functional power to work as a
cheek against different ministries. However the real success
of the committee system depends on
- their formation;
- how frequertly they meet;
- regularity of members' attendance;
- number of reports prepared over a particular
time;
- number of hours spent on deliberation;
- nature of issues raised and discussed etc.

Working of the DPCs and their Problems

First, in the original Constitution of 1972 it was provided in
Article 76 (1) that at the first meeting in each session parliament shall
appoint the PAC, Committee of Privilege; and such other standing
230 Committee Sy stem in Bangladesh

committees as the Rules of Procedure may require. However, this

italic part of this Article was omitted by the Constitution (Fourth
Amendment) Act, 1975 and as such it is not incumbent on the
parliament to form committees at its first session. This is why it is
evident that committees are formed much later than the formation
of parliament. In the first parliament no DPCs were formed';
ho\vever, in the second and 5' parliaments committees were
formed within a few months of their inauguration. In the 71
parliament 14 DPCs were formed after one year of the
inauguration of parliament; they were again reconstituted in
November 1997; and the remaining bPCs were formed in March
1998 i.e. after 2 years of the inauguration of the parliament. The
main reason of this is the lack of consensus between the
government and the opposition as to proportionate representation
in the committees. In the 81 parliament •PCs have not been
formed in one year of the formation of parliament. The reason lies
in conflict between the government and the opposition. Around
15 t1 July 2003 total 39 •PCs have been formed in the 8th
Parliament. However, no opposition members has been given
chairmanship in the committees. The opposition did not give any
list because they demanded chairmanship in the committees
proportionately. Thus in both 7th and $1 parliaments a good
member of bills have been passed without any involvement of the
committees.

The Rules of Procedure should be amended to make specific

provisions as to proportional representation of parties SC) that this
issue does not become a clue for every parliament's delay in
committee formation.

Second, before 1997 all DPCs were executive dominatcd as

they were headed by the ministers. The Rules of Procedure
formed in 1974, originally made this provision. In true

Though Article 76 of the Constitution was mandatory in nature the Rules of

Procedure did not provide for setting up any ministerial committees in the first
parliament. In 1980 the 2" parliament introduced Rule 246 thereby setting up 36
specific standing committees on different ministries. Due to changes in some
ministries and the reconstitution olothers, Rule 246 was amended on 11.05.1988 and
the list of specific ministries was omitted.
Constitution, Constitutional Law and Politics 231

parliamentary democracy ministers are not given even membership

let alone chairmanship in the DPCs. As an institution of
democracy DPCs function is to scrutinise the activities of different
ministries. But if a minister who himself will be scrutinised by a
committee heads that very committee, the serutinisation becomes a
mere farce only- If the function of a committee is one of scrutiny
of the executive i.e. the minister-in charge, the executive should
not head or even be a member of the committee. In 1997 Rule 247
of the Rules of Procedure was amended with effect that a minister
shall not be appointed as chairman of the DPCs. However as per
Rule 247 (4) a minister is an ex-officio member of any
departmental committee.

For better working of parliamentary democracy all Ministers,

Ministers of State or Deputy Minister should be declared barred
from becoming a member of any departmental committee.

Third, Rule 248 states that each DPCs shall meet at least once
a month. However, the practice shows that most of the
committees do not sit even once a month. Mr. Nizam Ahmed
observes that DPCs in the 5th parliament had meetings about 8
times a year; the 7th parliament had 8.6 meetings per year. In both
the 5th and 7t5 parliaments more than 60% of the committees did
not produce any report at all; many reports do not cover the
activities of the ministries. The DPCs in the 515 parliament
submitted 13 reports whereas in the 7,h parliament they submitted
11 reports. It is to be mentioned that 17 DPCs in Indian
parliament hold as many as 556 meetings averaging 33 meetings
per committee and present 75 reports averaging 4 report per
committee a year. 16 DPCs in Britain hold 360 meetings in average
a year, averaging 22 meetings a year per committee; and present 60
reports averaging 3.6 reports per committee a year. On the other
hand, the Bangladesh Parliament has 35 DPCs which is more than
double compared to both India and Britain. However, compared
to activism, DPCs in Bangladesh parliament remains far behind. In
the 5th Parliament the 35 DPCs produced only 13 reports in 5 year
time; in the 7 11, parliament they submitted only 11 reports for the
whole term of the parliament.
232 Committee System in Bangladesh

Fourth, unlike in Britain and India the DPCs in Bangladesh

meet in private'; they do not have the power to take evidence in
public. This element should be remedied in order to make the
administration accountable to the people through the committee
hearings. This will help bringing transparency in Government
which is a sina qua ,ion for growth of parliamentary accoumability.

Fifth, in systems like Australia, Canada, UK, India

departmental committees are empowered to scrutinise financial
proposals of different ministries. As Mr. Ahmed observes2, one of
the important functions of the DPCs is to consider the demands
for grants of different ministries and to make reports on the same
to the Flouse. After the general discussion on budget is over, the
two Houses of Indian Parliament are adjourned for a specific
period when each DPCs consider the demands for grants of the
concerned ministry and report to the parliament. The House, in
the light of the reports of the DPCs, consider the demands for
grants of each ministry. In countries like UK, India, Canada the
minister responsible for each department appears before the
committees to justify his estimates publicly, bringing along
departmental officials so that the committee members can ask for
clarificaiion. However, DPCs in Bangladesh Parliament do not
have any power to scrutinise financial proposals of different
ministries. The Rules of Procedure do not follow any committee-
level scrutiny of the budget (Rule 111(3), the Finance Bill (Rule
127(6); and the Appropriation Bill (Rule 126(1).

Sixth, there are lack of staff and resources for committee

functioning. Most officials who work for committees do not
belong to the parliament secretariat. They are on deputation from
various government departments.3

Seventh, in true democratic parliamentary form of government

reports of different committees are published and debated in the
House. In Bangladesh committee reports are rarely debated in the

Rule 199 of the Rules of Procedure

2 Ibid, at 143
Ahmed, ibid, 146
Constitution, Constitutional Law and Politics 233

parliament and therefore, the recommendations made in these

reports do not have any chances of being implemented.

Eighth, there is unwillingness on the part of the committee

members to work enthusiastically for the success of committee
scrutiny of legislative, administrative and financial activities of the
government.- Though the Rules of Procedure does not bar
committees from inviting opinion from public or experts,
committees had rarely ask for any outside opinion on hills; they
have mostly relied on information supplied by the parliament
secretariat or departmental officials.-'

Ninth, government officials seem very much reluctant to

cooperate with committee functions. Often they do not supply
documents as requested by committees; they do not turn up to
give evidence when requested by committees. This tendency of
ignoring committees by government officials will riot improve as
long as ministers remain members in committees. This is also the
fact that as long as ministers remain members and do not appear
before committees as witnesses, they will have a natural advantage
over the back bench members. This enables them to influence the
setting of the agenda and manipulating the working of
committees. 4 Also when ministers are opposed to any issue or
policy, committees can rarely do anything.

Enforceability of Committee Reports

A parliamentary Committee may give recommendation,
opinions and finally its most important function is to prepare
reports for parliament. In all systems committees do not have any
power to enforce their recommendations or reports on their own.
Committees are advisory bodies in nature. The usual practice is
that various Government departments respond to the reports of

Ahmed, ibid, at 158

7th parliament.
The author had interviews with some committee members in the
Their view is that most of the committee members seem reluctant to work for
committee regularly.
4 Ahmed_ ibid. at 156
234 Committee System in Bangladesh

the DPCs within two months of their submission to the House,

specifying the recommendations they accept and explaining the
reasons for non-acceptance if any 1 . According to estimates by
Rush, nearly 30 of the recommendations of various DPCs in
Britain are accepted outright; while about a quarter of them is
rejected 2 . In India, practice shows that the committee reports are
mostly accepted by the Government. The ministers in India
submit, 'action taken report's to parliament, providing details of
the progress of implementation of the recommendation of various
DPCs and explaining reasons for delay or rejection, if any3.

However, in Bangladesh Government bodies always tend to

by-pass or ignore committee reports; officials are generally
reluctant to adhere to committee recommendations. This is evident
from the report of the PAC, PUG and also of the ministerial
standing committees4.

How far can Courts Enforce Committee Report, Requests

and Recommendations
Please see author's professional book on 'Practice on
Bangladesh Constitutional Law'.

Parliament vis-à-vis the Courts

Please see author's professional book on 'Practice on
Bangladesh Constitutional Law'.

Ahmed. ibid. at 153

2 Rush. M. (1995), Parliamentary Scrutiny: in R. Pyper and L. Robbins (eds.),
Governing the UK in the 1990s, Macmillan. London. PP. 108-29
Bhardwaj, R. C (1995)' Parliamentary Partners: Departmentally-related standing
Committees in India. the Parliamentarian, Vol. 76 No. 4.11 1 . 313-9.
Ahmed. ibid. P. 153
Constitution, Constitutional Law and Politics 235

CHAPTER XII

LEGISLATION IN BANGLADESH
Generally legislation means the making of law. In broader sense
the term 'legislation' is used to mean any law made by any source of
law including the process of law making. In this sense precedents.
customs , conventions etc. are legislation. But in true and popular
sense legislation means to make laws by a politically represented
sovereign body in its legislative capacity through formal legislative
process. However, legislation in this popular sense is applicable
only in the British legal system. In the British system it is not the
Constitution but parliament is supreme and there is no legal
limitation over this supremacy. It is the British Parliament which is
omnipotent in law making; no other body can make any law
without is authorisation.
On the other hand, where there is written constitution which is
regarded as supreme or fundamental law, the definition of
legislation would be different. Because the constitution may give
legislative power not only to parliament but also to any other body
it thinks fit. For instance, the Constitution of Bangladesh has vested
general legislative power to parliament but in some cases the
president has been empowered to legislate. So where there is
constitutional supremacy the definition of legislation must be given
in the light of the supreme constitution. Legislation under
constitutional supremacy means the making of law under the
constitutional limitations by any authority created and empowered
to do so by the constitution itself and by any other body subordinate
to and empowered by that constitutional authority to make law.

Legislation Classified
Where there is parliamentary supremacy legislation may be of
following two types-
I. Supreme or Ordinary or Direct Legislation.
2. Subordinate or Delegated or Indirect Legislation.
One the other hand, where there is written constitution with
constitutional supremacy legislation may be of following three
types-
1. Supreme or Direct or Ordinary Legislation
236 Legislation in Bangladesh

2. Subordinate Legislation ; and

3. Special Executive Legislation.

Supreme or Ordinary Legislation

(underwritten constitution)
by
Legisiation a body which is directly and specifically
empowered by the constitution, the supreme law, to make law is
called supreme legislation. For example, law made by parliament
under the authority of article 65 of the Constitution comes under the
category of ordinary legislation. Likewise Article 93 of the
constitution directly empowers the president to make law
(ordinances) when parliament is not in session or dissolved. These
ordinances made by the president have same status and force of law
as an Act of parliament. All ordinances, therefore, comes under the
category of ordinary law.
It is important to mention here that there is a great danger if the
term 'legislation' is used to indicate only the output of legislative
process i.e. law'. From broader point of view the term 'legislation'
include both the process of law mahng and the 'jaw' made itself.
But it is more convenient and accurate to use the term 'legislation'
to indicate the process of law-making only. This is because in
British constitutional system there is nothing as supreme or
fundamental law but there is supreme legislation in the sense that in
law making the British parliament is supreme ; there is no legal
limitation upon its power, neither is it subject to any other
legislative authority. Its law making authority is, therefore, supreme
but the law as an output of supreme legislation is ordinary law.
Likewise in a written constitution under constitutional supremacy
the general power of law-making is given to a legislature and that
legislature's law-making may he termed as supreme legislation but
'law' as such made by it cannot be termed as supreme law it is rather
ordinary law. Because the constitution itself is the supreme or
fundamental law. Article 7 of the Bangladesh Constitution
specifically delares that 'this constitution is, as the solemn
expression of the will of the people, the supreme law of the
Republic'. The legislation by Bangladesh parliament may also be
termed as supreme legislation in the sense that, though there are
certain constitutional restrictions upon its power, it is not subject to
Constitution, Constitutional Law and Politics 237

any other legislative authotity within the state. But laws made by it
are all ordinary or primary law.

Subordinate Legislation
Subordinate legislation means legislation by a subordinate
authority under the powers delegated to it by the supreme
legislative authority through its ordinary law. (A detailed discussion
about subordinate legislation has been given elsewhere in this
chapter.)

Special Executive Legislation

A trend is noticeable in written constitution of some countries.
It is that the constitution itself directly empowers the president (the
head of the state) to make secondary law like rule, regulation, order
etc. These laws have not been given the same Status as an .Act of
parliament ; nor do they com .e under the category of subordinate
law as they are not made by any delegated power under an Act of
parliament. They are, in a sense, a special grant to the President by
the Constitution which may be termed as a special executive
legislation.
It is to be mentioned here specifically that the traditional
meaning of 'executive law' is the rule-making power of the
executive authority like ministers or president under the authority of
an Act of parliament.
Someone might argue that ordinances made by the president
under Article 93 of the Constitution of Bangladesh would come
under the category of executive law because it is the head of the
executive who makes these ordinances. However, it is to be borne
in mind that firstly, ordinance made by the President under the
Bangladesh Constitution have the same effect and force as an Act
of parliament and a piece of ordinance, like an Act of parliament,
may delegate a subordinate body to make subordinate law.
Secondly, the President's power of ordinance-making is a legislative
power as opposed to executive power;' executive laws are made
under the authority of executive power if something otherwise is

A. K. Roy V. Union of India (1982) I SCC 270

Venkaga Reddy V. A. P. AIR 1985 SC 724
Nagaraj V. A.P. AIR 1985 SC 557
Ahsanullah V. Bangladesh 44 DLR 179
23 Legislation in Bangladesh

not specifically mentioned. Thirdly, the very term 'executive law'

gives an indication of secondary law. Executive law as such is
always a contingent, subordinate or delegated law. So the
President's ordinance-making power as specified in the Bangladesh
Constitution should not be termed as executive Jaw; it is rather
ordinary law.
Now as to the special executive law as I have mentioned just
now an elucidative discussion should be given in the light of the
provision of our Constitution. Articles 55(6), 62(2), 68, 75(l)(a),
79(3), 85 115, 118(5), 127(2), 128(3), 133, 138(2), 147(2)(b),
140(2) of the Constitution directly empowers the President to make
secondary'law (order, rule, regulation). This power has been given
subject to variety of conditions.
First. Articles 62(2), 68, 79(3), 85 and 133 condition that the
President shall make rules or orders until positive law is made by
parliament. So the President has been empowered to make
secondary law for an interim period. But the fact is that in some
cases till today no positive law has been made by parliament. For
instance, the Government Servant's (Conduct) Rule, 1989 was made
in pursuance of Article 133 of the Constitution.
Second, Articles 79(3), 118(5), 127(2), 138(2) and 140(2)
condition that the President shall make order or rule subject to the
provisions of an y law made by parliament. Secondary law-making
power of the President in these cases is, therefore, for all time but
subject to law passed by parliament.
Third, in some cases the President has been given an unfettered
power of rule-making. For instance, Articles 55(6) and 115 of the
Constitution state that appointments of persons to offices in the
judicial service or as magistrates exercising judicial functions shall
be made by the President in accordance with rules made by him in
that behalf. Here the President's rule-making power is almost
unconditional.
Constitution, Constitutional Law and Politics 239

In view of the above discussion it may be said that under the

constitutional system of Bangladesh the stages and status of law is
like the following

Fundamental law
or the Supreme
Law i.e. the cons-
titution itself
Acts of Parliament

2. Ordinary Law
or
Primary Law
<Ordinance

Delegated or Subordinate Laws

(Order, Rule,
Regulation, by-law etc.)

I Secondary Law
3. I
Special Executive Law
(Order, Rule, Regulation
etc.)

Masdar Hossain case 20 BLD 2000 (AD) 104

In the above case the AD has catgorised the different types of the
President's rule making power within the Constitutional limits. C. J.
Mustafa Kamal in his judgment has classified the President's rule
making power into two divisions: Primary and plenary rule making
power of the President and Contingent rule making power of the
President.
"In Article 11 5 it is the President who has been vested with
the primary power, as distinguinst from contingent power
to frame rules with regard to appointment of persons to
offices in the judicial services or as magistrates exercising
judicial functions. This rules-making power of the President
is constitutionally different in content, manner and effect
from the contingent rule-making power of the President in
240 Legislation in Bangladesh

the proviso to Article 133 of the Constitution" (Paragraph

27).

"President may by-order or by making rules, as the case may

be, make provisions for certain matters until the parliament
enacts to that effect. As and where laws are made by
parlaiment, either the Presidential orders or rules go out of
existence or they exist to the extent not in conflict with laws
made by the parliament. This is called contingent rule
making power of the President and examples of these
powers are to be found in our Constitution in Articles 62(2),
75(1)(a), 79(3), 85, 127(2), 128(3), proviso to Article 133,
Article 138(1), 147(2)(b)" (Paragraph 28).

"Constitution confers on the President the direct, primary

and plenary power of framing rules which even the
parliament cannot frame (because the constitution has not
given the parliament to legislate there) and which have an
immediate legislative effect. One example is Article 55(6)
which states that "the President shall make rules for the
allocation and transaction of the business of the
Govememnt". Article 115 provides another example of such
a direct, primary and plenary power of the President to make
rules with regard to appointments of persons to offices in
the judicial service or as magistrates exercising judicial
functions. The parliament has no authority under our
Constitution to make laws or the Government has authority
to pass any orders or frame rules on this subject" (Paragraph
30).

In view of the above ruling the diagram of secondary law I have

mentioned above needs further explanation. Some of the special
execuitve laws have been given the status of primary law by the
Constitution itself and these are Articles 5 5(6) and 115.

Status of Order, Rule and Regulations

Order, Rule, Regulation-these three forms of law may have
following three status:
Constitution, Constitutional Law and Politics 241

Pre or Supra-Constitutional Status.

The constitution of a country has not yet been made it is on the
process. In such a situation the law-making power is given
unfetteredly on the President and the President rules the country by
promulgating orders, rules etc. Thus in pre-constitutional status
these laws take place of primarily law. Because at that time there
can be nothing in the state as true primary law.

Extra-Constitutional Status
Sometimes it is evident that completely in an unconstitutional
way martial law is declared suspending the Constitution. Under
such a situation all laws including the Constitution itself remain
suspended and the martial law proclamation made by the Chief
Martial Law Administrator takes place of the supreme law i.e. the
Constitution. Country is then ruled by making martial law rule,
regulation or order under the authority of a martial law
proclamation. Thus Orders, Rules, Regulation etc. under an extra-
Constitutional regime take place of primary law.
It is to be mentioned here that in the above mentioned two
situations (pre-Constitutional and extra-Constitutional status) it is
sometimes seen that Orders take place of primary law and Rule and
Regulation take place of secondary law. Because sometimes Rule
and Regulations are made under the authority of a martial law
Order.

Constitutional Status
While the Constitution is in operation Order, Rule and
Regulations are always secondary law ; of course, in some rare
cases they are primary law. As secondary law they are either
delegated or subordinate law or special executive law.
When an Order or Rule or Regulation is enacted under the
authority of an Act of parliament or an Ordinance it is delegated
law. For example, Administrative Tribunal Rules, 1982 which was
made under the authority of section 12 of the Administrative
Tribunal Act, 1982. Again, when they are made under the direct
authority of the Constitution they are special executive law. For
instance, the Government Servant's (Conduct) Rule, 1979 is a

V
242 Legislation in Bangladesh

special executive law which was made under the authority of article
133 of the Constitution.
Again, during the Constitutional normalcy it is sometimes seen
that some Orders made during pre-Constitiitional period are kept
operative. In such a case these Orders exist as primary laws. For
example, the first Schedule of the Constitution of Bangladesh
declares some Orders effective which were made by the President
during pre-Conslitutional period.
Again, the Constitution of Bangladesh was made effective in
1972 but the law-making body parliament was constituted and first
met in 1973. During this period the President was empowered
under the 4th Schedule to make law by issuing Orders. These
Orders till now exist as primary laws. One of them is the Dhaka
University Order. 1973

Distinction between Delegated Legislation and

Special Executive Legislation
I. The source and basis of a delegated law is an Act of
parliament or an ordinance. The source of a special executive
legislation, on other hand, is the Constitution itself.
2. The power of making subordinate law can be delegated
primarily and principally by parliament whereas the power of
making special executive law can be delegated by the Constitution
itself.
3. The power to make subordinate law is delegated to ministers,
autonomous bodies and local governments whereas the power to
make special executive law is given to the President and to the
governor where there is federal government.
4. The legality of a subordinate law is tested under the
conditions of an Act or Ordinance whereas the validity of a special
executive law is tested under the Constitutional conditions.

Subordinate or Delegated Legislation

Generally all legislative power is vested with the legislature.
But the legislature may delegate a limited power of legislation to a
subordinate authority under some conditions. Legislation by a
Constitution, Constitutional Law and Politics 243

subordinate authority under the delegated power othe legislature is

called subordinate legislation.'
According to Jain and Jain' the terni delegated legislation is
used in two senses it ma y mean (a) exercise by a subordinate
agency of the legislative power delegated to it by the legislature. or
(h) the subsidiary rules themselves which are made b y the
subordinate authority in pursuance of the power conlerred oil by
the legislature.
To he mentioned here the concept of subordinate legislation
trul y includes both the senses used b y Jam and Jam. In narrower
sense it means only the first sense because the second sense is the
output of the first.
Generally the source of subordinate legislation is Ads ol
parliament or Ordinances made by the President which hae the
same force and effect as an Act of parliament. Such an Act or
Ordinance has an enabling section which enables a subordinate
body to make subordinate law. The statute enacted by parliament or
the ordinance made by the president delegating the legislative
power to a subordinate body is known as the Parent or Enabling Act
or Ordinance and the Rules, Regulation or Orders etc. made by a
subordinate authority in pursuance of the legislative powers
delegated by parent statute are known as subordinate law or
subsidiary law or secondary laws.

Subordinate Legislation in USA

American writers have classified subordinate legislation into
two categories 3 : ( i) Subordinate Legislation and (ii)Contingent or
Conditional Legislation.

The legislation is subordinate in sense that the authority making such legislation is not
a supreme or ordinary one (parliament) but a subordinate one. Again, it is called
delegated legislation in the sense that the legislation is done under a delegated power.
Again. it is called indirect legislation in the sense that the authority making such
legislation has no direct pos\cr of legislation. It is also called child legislation in the
sense that its basis i.e. the parent legislation has already been made.
Quoted by 1'akwani. C.K. Lectures- on Administrative Law, 2n ed. (India : Lucknow
Eastern Rook Compans. 1994), P. 53
1 [art, Cooles etc Quoted by rakwani. C.K. ibid. P. 74
244 Legislation in Bangladesh

Contingent Legislation
Hart defines conditional legislation as "a statute that provides
controls but specifies that they are to go into effect only when a
given administrative authority fulfills the existence or conditions
defined in the statute". For example, by making a law, the
provincial government was empowered to set up special courts. But
the operation of the law was left on the provincial government on
being satisfied that emergency had come into existence. This is a
conditional legislation. Because the legislation was complete and
what had been delegated was the power to apply the statute on
fulfillment of certain conditions.'
Thus in conditional legislation no legislative power is
delegated. What is delegated is the power to apply the law on
fulfillment of certain conditions. On the other hand, in delegated
legislation rule making power is delegated to a subordinate
authority and the authority has discretion whether to exercise the
power delegated to it or not. In Hamdard Dawakhana V . Union of
India2 the Supreme Court of India points out the distinction
between the two in the following terms:
"The distinction between conditional legislation and delegated
legislation is that in the former the delegate's power is that of
determining when a legislative declared rule of conduct shall become
effective and the latter involves delegation of rule making power
which constitutionally may be exercised by the administrative agent."
The distinction between the two classes is said to be based on
the point of discretion. In contingent or conditional legislation the
delegation is of fact finding and in subordinate legislation it is of
discretion.
To be mentioned here that this classification of delegated
legislation was developed in US constitutional system due to the
doctrine of separation of power. But at present even in USA such
classification does not bear any significance at all. Because
delegated legislation includes both the kinds and it is recognised in
all countries of the world.

Emperor V. Ijenoari' Lal AIR 1945 Pc 48

Quoted from Takwani. C.K. Ibid, I'. 75
2 AIR 1960 SC 554 (566) Ref. Takwani, C.K. Ibid, P. 76
Constitution, Constitutional Law and Politics 245

Practice of Subordinate Legislation in the USA

Though in theory the conception of subordinate legislation is
not recognised in USA, in practice it is being used and applied
widely. For two specific reasons subordinate legislation is not
recognised in theory in USA:

1. Doctrine of Separation of Power

The US constitution embodies the doctrine of separation of
power. Under article I of the constitution all legislative power is
vested in the Congress of USA. No delegation of legislative power
is possible by the Congress. The doctrine, therefore, prohibits the
executive being given law-making powers. Again, the judiciary has
the power to interpret the constitution and declare any statute
unconstitutional if it does not conform to the provisions of the
constitution.

2. Delegatus non potest delegare

This doctrine means that a delegate cannot further delegate his
power. Since the Congress gets power from the people the real
basis of the legislative power of the Congress is people and the
Congress is, therefore, a delegate of the people and in this sense it
cannot, according to this doctrine, further delegate its power to
anybody. Taft C.J. observed as follows:
"The well-known maxim 'delegate non-polesf dalegai'e'
applicable to the law of agency in the general and common law, is
well understood and has wider application in the construction of our
Federal and State constitution than in private law .............It is the
breach of the National Foundation Law, if Congress gives up its
legislative power and transfers it to the president or to the judicial
branch'.'

These two doctrines, therefore, do not allow the Congress to

delegate any of its legislative powers. But strict adherence to this
doctrinal position was not practicable. The realities of the situation
have forced the US Congress to delegate its power to the executive

Hampton & Co. V. USA 276 US 394 (1928)

Re[ Tope, T.K. Constitutional Law of India, Ibid. P.356
246 Legislation in Bangladesh

and other subordinate authorities. With the beginning of the 20th

century's concept of welfare state the work of the US government
like other states of the world has enormously been increased which
has practically necessitated a mass of legislation. It was impossible
for the Con g ress to enact all the statutes with all particulars.
Consequently the US Con g ress bein g faced with tremendous
pressure of work began to delegate a certain type of legislative
functions to the administration.
This trend of the Congress was first attacked b y the US
Supreme Court and was declared unconstitutional. In Field V .
(lurk the ft'prenie Court observed:
"That Congress cannot delegate legislative power to the president
IS a p rin ciple niversally
u recognised as vital to the integrity and
nmi Melia lice of the system of government ordained by the
coils) i tUtlOil.
]'here are man y eases in which the US Supreme Court denied
Congress's power of delegation. Some noted cases are (,)) illc (I Stales
V . Chicago M.st, P.P.R Co. (193 1) 282 US 3 Il, Panama Refining
Co. V . R'an (Hot Oil case)(] 934) 293 US 388. Schec/iter Poultry
Coin. V . US (Sick Chicken Case) (1935) 295 US 495•2

Of course, the Supreme Court could not shut its eyes to the
reality and tried to create 'a balance between the two conflicting
forces doctrine of separation of powers barring delegation and the
inevitability of delegation due to the exigencies or the modern
governnlent'.' Form 1940 the US Supreme Court began to take
liberal view and in many cases it upheld delegation of legislative
power. In National Broadcasting Co. V . US (1943) 319 US 190,
Y akus V . US (1944) 321 US 414, Litcher V. US (1947) 334 US 742
the Supreme Court allowed Congress to delegate its power on
condition that it must prescribe legislative policy or standard. Later
on in Fahe' V . Ma/lone (1947) 332 US 245 the Supreme Court

(1892) 1 . 13 US 649 Ref. 'Iak'ani. C. K. Ibid P. 57

2 See lakwani. C.K. Ibid P. 57-77
Tope. 1.. K. ('c,nsiitmiojzal Law of India. Ibid. 356
Islam. Malimudul. C unsa ui,00al 1,ow of Bangladesh.
(Dhaka: I3ILIA. 1995)1'. 308
11.1 : Cases and ,'tlawr,als on A d,ninisnative l,aw in India, (1966). Vol. 1. Quoted by
lakwani. C.K. Ibid P. 58
Constitution, Constitutional Law and Politics 247

upheld delegation despite the absence of standards.' Thus even in

USA where the constitution is based on the doctrine of separation
of power delegated legislation has become inevitable and the
Supreme Court has approved of such delegation. "The pragmatic
considerations, therefore.. have prevailed over the theorilical
Objection.?

Delegated Legislation in the UK

In England, oil other hand, there is no written constitution
circumscribing the powers of parliament which in the eyes of law is
sovereign. ''l'he British constitution has entrusted to the two Ilouses
of parliament subject to the assent of the King. an absolute power
untrarnelled by any written instrument obedience to which may be
compelled by some judicial body." 3 Parliament may accordingly
delegate to any extent its powers of law-making to an outside
authority.
From historical point of view delegated legislation have its
origin and development in British legal system. The practice of
delegating power to government departments to make rules began
from the adoption of the Reform Act of 1832. Then with the
beginning of 20th century's conception of we] fare state the works of
government increased tremendously which necessitated to leave
very wide discretion and rule making powers in the hand of the
executive. After the second World War the delegated legislation
increased so greatly that it has now been ail work of the
gorvenment's departments. In practice, however, about 90% Of
English law consists of delegated legislation.4

See Tope. T.K. ibid. P. 356

Schwartz: A n introduction to A ,nerican .idministraiive Law. 1984- P. 47. Quoted by
Takwani. C.K. ibid, P. 59.
R.V. fIaIIic/av 1917 AC 260
Rell Shukla, V. N. Constitution n/India, 7th ed. lhd. P. 456
Alder. John. Constitutional and A dministrative Low, (I.ondon : Mackmillan. 1989),
P. 79
248 Legislation in Bangladesh

Conditions of Delegated Law

(How far delegation is permissible)
From the study of the development of delegated legislation in
USA it can be said that it is now a common principle of
constitutional and administrative law that despite the constitutional
enabling provisions delegation of law-making power of the
legislature is possible. But can the legislature delegate its essential
legislative function ? It cannot. To say, in other words, there are
some recognised conditions of delegation of legislative power.
Delegation is possible upon the fulfillment of the following
conditions:
I. The legislature cannot delegate its primary duty of law-
making i.e. the essential legislative functions which mean-
1) that the legislative policy of a particular law must be
determined by the legislature;
ii) that the legislative policy of the law must be formulated by
the legislature itself for the guidance of the delegate and
iii) that the legislative policy of the law must he made binding
rule of conduct for the subordinate authority.'
These three conditions of essential legislative function have
been beautifully described by sir Cecil Carr in the following way-
"The legislature provides the gun and prescribes the turget but
leaves to the executive the task of pressing the trigger." 2 If any of the
three functions is left undone by the legislature the court can declare
a delegated law illegal.
2. The delegated law made by a subordinate authority must be
published though there is no rule as to any particular kind of
publications. Without publication a delegated law cannot be
effective.

About these conditions the following cases have given decisions—

Re Delhi Laws A ct, 1982 Case AIR 1951 SC 332. 245, 387
Edward Mills Co. V . State ofA jmjr AIR 1955 SC 25 1 SCR 735
Devidas Gopal Krishnan V . State of Punjab AIR 1967 SC 1895, 1901
Harishankar Bag/a V . M. P. Slate AIR 1954 SC 465. I SCR 380
iia,ndardDawcxkhana V . Union of India AIR 1960 SC 554. 2 SCR 671
Ref". Shukia, V. N. Constitution of India, Ibid, P. 457-464
2 Quoted by Takwani. C.K, ibid. P. 67
Constitution, Constitutional Law and Politics 249

Subordinate Law in Bangladesh

The Constitutional basis of delegated legislation in Bangladesh
is the proviso of Article 65 of the Bangladesh Constitution which
provides-
"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, by laws or other
instruments having legislative effect.
Thus the Constitution has expressly allowed parliament to
delegate its legislative power. It is important to mention here that if
the enabling provisions were not provided for in the Constitution. it
would not have been any problem for parliament of Bangladesh to
delegate its legislative function. Because no such enabling
provision is provided for in India or US or Pakistan Constitution
nor was it provided for in 1956 or 1 962's Constitution of Pakistan.
It is now a well settled principle of Constitutional law throughout
the world that the legislature can delegate some of its legislative
power to the administration.

Sources of Delegating Power under the

Constitution of Bangladesh
Under the constitution of Bangladesh there are two specific
sources of delegated law-
I. An Act of parliament in which power is delegated to make
rules, by-law or regulations.
2. An ordinance made by the President in pursuance of article
93 of the constitution in which power is delegated to make rules,
by-laws, or regulations. For example, the Bangladesh Hotel and
Restaurant Ordinance, 1982 enables in its section 27 government to
frame a rule and in pursuance of that delegated power government
made the Bangladesh Hotel and Restaurant (Registration, License
and Control) Rules, 1986.
It is to be noted that the general principle is that it is only the
legislature which, through an Act, can delegate legislative power to
the administration. How then can the President's ordinance do that?
This is possible because an ordinance made by the President has th
same effect and force as an Act of parliament.
250 Legislation in Bangladesh

Need for Control of Delegated Legislation

The fact is that realities of modern welfare state have made
delegated legislation an unavoidable and inseperable function of the
government today. Due to the tremendous pressure on parliament's
Functionin g the importance and necessity of dele gated legislation
can in no way he negated. At the same time there is inherent danger
of abuse of the said power by the executive. In 1929 the Lord Chief
Justice. Lord Ilarward in his hook "The New Despotism" criticised
the growth of delegated legislation and pointed out the dangers of
its abuse. As a result, the Committee on Minister's Powers was set
Up which in its report accepted the necessity for delegated
le g islation but considered that the power delegated might be
misused and recommended the lbl lowing modes of control over the
delegated legislation.
1. Nomenclature of various Ibrins of delegated legislation
should he supplied and better provision he made for publication.
2. The precise limits of law-makin g power which parliament
intended to confer on a Minister should he clearly defined.
3. Parliamentary scrutiny and control should he improved.
4. Consultation with interested groups or bodies should be
extended.

Control over Delegated Legislation

There are following three methods of controlling the delegated
legislation.

1. Parliamentary Control
It is the primary duty of the legislature to supervise and control
the exercise of delegated power by the executive authorities so that
the executive authority cannot abuse their delegated power.
Parliamentary control over the delegated legislation is exercised at
three stages.

The first stage is the stage when the power is delegated to the
subordinate authorities by parliament. This stage comes when the
Bill is introduced in the legislature. At this time parliament decides
how fur power would be delegated to the subordinate authority.
Constitution, Constitutional Law and Politics 251

The second stage is when the rules made under the statute are
laid before the House through the committee on subordinate
legislation (Such a committee is commonl y known as Select
Committee on Statutor y Instrument or Scrutiny ('inmi1tee). The
Committee on subordinate legislation scrutjnises the rules [mmccl
by the executive and submits its report to the legisiature if these
rules are be yond the permissible limits of delegation.

i'lic third stage starts in the I louse after the committee has
sLibmitted its report. The rules along with their reports are debated
in the House. If the rules are 1(111(1 vir's questions may be put to the
Minister concerned and if necessar y even a motion of censure on
the Minister responsible for the rules and regulations may be
moved.

2. Judicial Control
The courts have power to consider whether th delegated
legislation is consistent with the provisions of - tic 'cnabln Act on
the ground of u/tm vires, 1 he courts can declare the parent Act
unconstitutional on the ground of excessive delegation or violation
of fundamental rights. The parent Act may he Constitutional but
the delegated legislation emanating from it may come in conflict
with some provisions of the Constitution and hence it can he
declared unconstitutional.

3. Control by Public Opinion

In Britain a Statutory Instrument Act was passed in 1946 which
provides that the delegated legislation shall he published for public
information before it comes into operation. 'I'hrough this
publication the people and the press can express their opinion over
the instrument.

Control of Delegated Legislation in Bangladesh

No research statistics has yet been made in Bangladesh as to
what percentage of total laws in Bangladesh consists of delegated
law. But it is evident that almost 90% Acts and Ordinances provide
for delegation of legislative power to the executive and definitely
the largest portion of law in the country is coming from the
252 Legislation in Bangladesh

delegated legislation. The reality is that a very inadequate piece of

legislation is enacted by parliament providing only the skeleton and
allowing the officials and executives to frame by-laws, rules and
orders thereby making the executive the real law-makers. Often
these Acts of parliament even omit to provide the guidelines and
criterions for making rules and for the exercise of the discretion by
the executive. This excessive delegations almost amount to the
abdication of the legislative power of the par!ament. Because
unlike in Britain there is no parliamentary control in Bangladesh
over delegated law. No select committee exists to serutinise and
make report over delegated law. No statutory instrument Act as
exists in Britain has yet been made in Bangladesh. The delegated
laws, therefore, are not laid before parliament. Nor is there any
mandatory obligation on the part of the executive to publish the
delegated law for the information of the public before their
application. 011en delegated laws in the form of Statutor y Rules and
Orders (S.R.0) are contradictory, confusing, unclear and allow
enormous discretion to be exercised by the executives. It suits
bureaucrac y enjoying enormous power. These delegated laws
sometimes expressly violate even constitutional provisions.

The only control which exists in Bangladesh is judicial control.

The I-ugh Court Division of the Supreme Court can declare the
parent Act or Ordinance unconstitutional on the ground of
excessive delegation or violation of fundamental rights. The court
can consider whether the delegated law is consistent with the
provisions of the 'enabling Act' on the ground of u/ira vires.
Constitution, Constitutional Law and Politics 253

Cl{APTER X I I I

THE PRESIDENT: POSITION,

POWER & FUNCTION

Part IV of the Constitution of Bangladesh deals with the

'ExecittiVC' which comprises the President, the Prime Minister and
the cabinet, the local government and lastly the attorney general.

'rThe Status of the President

From theoretical and constitutional or legal point of view the
President is the head of the state; he is also the head of the
executive. Because Article 48(2) states that the President, as Head
of State, take precedence over all other persons in the state. Again,
Article 55(4) states that all executive actions of the government
shall be expressed to be taken in the name of the President. This is
the theoretical or constitutional status of the President but in reality
he is a figure head only ; the real executive power of the state is
exercised by the cabinet under the leadership of the Prime Minister.
Because firstly, Article 48(3) states that in the exercise of all his
functions, save only that of appointing the Prime Minister and the
Chief Justice the President shall act in accordance with the advice
of the Prime Minister. And secondly, Article 55(2) provides that the
executive power of the Republic shall, in accordance with this
constitution, be exercised by or on the authority of the Prime
Minister.
Thus like the British Crown the President of Bangladesh reigns
but does not govern the country. He is the titular executive and the
cabinet is the real executive.
As to the President's immunity it is stated in Article 5 1 that the
President shall not be answerable in any court for anything done or
omitted by him in the exercise or purported to exercise of the
functions of his office. An aggrieved person may take proceeding
against the government of Bangladesh but not directly against the
President. Again. during his term of office no criminal proceeding
whatsoever shall be instituted or continued against the President.
No court shall issue any process for his arrest or imprisonment.
254 The President: Position, Power and Function

Qualifications and Disqualifications of the President

Qualifications:
Article 48(4) lays don the qualifications which one must
pOSSeSS for being elected to the office of the President of'
Bangladesh. These are following:
must
i) I IC have completed the age of35 years.
must
ii) I IC be qualified for election as a member of parliament.
iii) He has not been removed from office of President by
impeachment under this constitution.
iv) As it has Ken conditioned that he must be qualified for
election as a member of parliament, he must be a citizen of
Bangladesh.

l)isq t' alificarioiis:

I. ftc President during his term of office shall not be qualified
for election as a member of parliament and if a member of
parliament is elected as President he shall vacate his seat in
parliament on the day on which he enters upon his office as
President. [Article 50(b)].

2. The President shall not hold any office, post or position of

profit or emolument or take any part whatsoever in the management
or conduct of any company or body having profit or gain as its
object. [Article 147(3)]

Election of the President

In the original constitution the President was to be elected by
members of parliament iii a poll by secret ballot as provided for in
the Second Schedule of the constitution. But the 12th Amendment
did not restore that Second Schedule. Now after this Amendment as
per Article 48 the President is to he elected by the members of
parliament in accordance with the law meaning that parliament may
by law make provisions for election by open ballot which actually
imposes a bar on the exercise of personal freedom of members of
parliament in electing the President. A law was accordingly enacted
Constitution, Constitutional Law and Politics 255

which provided for that the presidential election was to be done

through open ballot.

Term of Office of the President

1. Article 50 says that the President shall hold office for a term
of five years from the date on which 1i. enters upon his office.

2. Even after the expiry of his term the President shall continue
to hold office until his successor enters upon his office (Art. 50).

3. The President shall not hold office as President for more than
two terms, whether or not the terms are consecutive [Art. 50(2)].

4. Before the expiration of his term the President may resign his
office by writing under his hand addressed to the Speaker [Art.
50(3)].

5. If a vacancy occurs in the office of President or if the

President is unable to discharge the functions of his office on
account of absence, illness or any other cause the Speaker shall
discharge those functions until a President is elected or until the
President resumes the functions of his office, as the case may be
(Act. 54).

6. In the case of vacancy in the office of the President occurring

by reason of the expiration of his term of office an election to fill
the vacancy shall be held within the period of ninety to sixty days
prior to the dale of expiration of the term (Art. 123).

7. In the case of vacancy in the office of the President occurring

by reason of the death, resignation or removal of the President, an
election to fill the vacancy shall be held within the period of ninety
days after the occurrence of the vacancy (Art. 123).

Removal of the President

Before the expiry of his term the President may be removed
from his office by parliament. Such removal has two aspects.
256 The President: Position, Power and Function

A. Impeachment of the President; and

B. Rem.vaI of President on grounds of incapacity.

Impeachment' of the President

7 Ac6ording to Article 52 of the Constitution the President may
be impeached on two grounds:
i) On a charge of violating the Constitution; or
ii) On a charge of gra. misconduct.

Procedure:
I) The impeachment charge against the President must be
preferred by a notice of motion signed by a majority of the total
number of members of parliament. The notice must be delivered to
the Speaker. The notice must set out the particulars of the charge.
ii) The motion shall not be debated earlier than fourteen not
later than thirty days after the notice has been delivered to the
Speaker.
iii) Having received the notice the Speaker shall forthwith
summon parliament if it is not in session.
iv) The President shall have the right to appear and to be
represented during the consideration of the charge.
v) If after the consideration of the charge a resolution is passed
by parliament by the votes of not less than two-thirds of the total
number of members declaring that the charge has been
substantiated, the president shall vacate his office on the date on
which the resolution is passed.

B. Removal on the Ground of Incapacity

Under Article 53 the President may be removed on the ground
of two types of incapacity: i) physical incapacity; and ii) mental
incapacity.

11e term impeachment means an act of charging a public official with misconduct in
office. When an impeached official is found guilty, he or she can be removed from
office and forbidden to hold office again. The person may also he tried in regular
courts.
Constitution, Constitutional Law and Politics 257

Procedure:
i) A notice of a motion may be given to the effect that the
President has been physically or mentally incapacitated.
ii) The notice of motion must be signed by a majority of the
total number of members of parliament.
iii) The notice must be delivered to the Speaker setting out the
particulars of the alleged incapacity.
iv) On receipt of the notice the Speaker shall forthwith summon
parliament if it is not in session and shall call for a resolution
constituting a Medical Board.
v) As soon as medical board is constituted a copy of notice
thereto shall be transmitted to the President together with a request
signed by the Speaker that the President submit himself within a
period often days from the date of the request to an examination by
the Board.
vi) If the President submits himself to an examination by the
Board, the Board shall submit its report within seven days of the
examination.
vii) If after consideration by the parliament of the motion and of
the report of the Board the motion is passed by votes of not less
than two-thirds of the total number of members of parliament, the
President shall vacate his office on the date on which the resolution
is passed.
viii) If the President has not submitted himself to an
examination by the Board before motion is made in parliament, the
motion may be put to the vote, and if it is passed by the votes of not
less than two-thirds of the total number of members of parliament,
the President shall vacate his office on the date on which the motion
is passed.
ix) The President shall have the right to appear and to be
represented during the consideration of the motion.

Powers and Functions of the President

According to Article 48(2) the sources of the power of the
President are two—the Constitution and any other law. The
Constitutional powers of the President may be of following five
types

17
258 The President: Position, Power and Function

A. Executive power; D. Judicial Power; and

B. Legislative Power; E. Miscellaneous Power.
C. Financial Power;

A. Executive Power of the President

1. The President is the Head of state [Article 48(2)]. And all
executive actions of the government shall be expressed to be taken
in ft name of the president [Article 55(8)].
2. The President shall by rules specify the manner in which
orders and other instruments made in his name shall be attested or
authenticated [Article 55(5)].
3. The President shall make rules for the allocation and
transaction of the business of the government [Article 55(6)].
4. The President shall appoint as Prime Minister the member of
parliament who appears to him to command the support of the
majority of the members of parliament [Article 56(3)].
5. The President shall appoint the Prime Minister, other
ministers and of the Ministers of State and Deputy Ministers
[Article 56(2)].
6. In accordance with the advice of the Prime Minister the
President shall appoint the Attorney General of Bangladesh, judges
of the Supreme Court, the Chief Election Commissioner and other
Election Commissioners, the Comptroller and Auditor-General, the
Chairman and other Members of the Public Service Commission
(Articles 64, 95, 118, 127 138).
7. The President shall appoint the Chief Justice (Article 95).
8. The President is the supreme commandeer of the defence
services of Bangladesh (Article 62).

These executive powers of the President of Bangladesh are

more or less similar to those exercised by the heads of other
countries of the world. The US President exercises also the same
power but his appointing powers have to be approved by the senate;
otherwise appointments become illegal. This is because there is the
principle of checks and balances in the US Constitution. But in
parliamentary system no such approval from the legislature is
required. The executive powers exercised by the President of
Constitution, Constitutional Law and Politics 259

Bangladesh are similar to those exercised by the British Crown.

Like the President of Bangladesh the British Crown exercises its
executive powers in accordance with the advice of the Prime
Minister and in some cases of the Lord Chancellor.

B. Legislative Powers of the President,

1. In accordance with the written advice of the Prime Minister
the President summons, prorogues and dissolves parliament (Article
72).
2. The President has right to address parliament and may send
message thereto (Article 73).

3. The President assent to every Bill passed by the parliament.

Without his assent no Bill comes into Jaw. After a Bill is passed by
the parliament it is presented to the President for his assent. Within
15 days after a Bill is so presented, the President shall assent to it.
However, the President can return the bill to the parliament for
reconsideration after it is presented to him for his assent. But if the
Bill is again passed by the parliament with or without amendment
by the votes of a majority of the total number of the members of the
parliament and it is presented to the President, the President has to
assent within seven days failing which the Bill automatically
becomes a law I.

4. When parliament stands dissolved or is not in session the

President may make law by promulgating ordinances and such
ordinances have the same force and validity as an Act of Parliament
Article 93). The President cannot exercise this power
independently; he has to act in accordance with the advice of the
Prime Minister (Article 48(3)).

In the 7th Parliament one Bill- the Code of Civil Procedure (Amendment) Bill
1998- providing for empowering the subordinate courts to try cases more
speedily, was returned to parliament by the President Sahabuddin Ahmed for
reconsideration. However, the AL Government did not reintroduce the Bill in the
parliament to consider the Presidents message. The reason seems to be its
inability to muster the majority votes of the total MPs needed to pass it and to
resubmit it to the President for considerations.
260 The President: Position, Power and Function

C. Financial Power.
I. No Money Bill or any Bill which involves expenditure form
public moneys, shall be introduced into parliament except on the
recommendation of the President (Article 82).

2. No demand for a grant shall be made except on the

recommendation of the President (Article 89(3).

3. The President has the power to authorise expenditure from

the Consolidated Fund for supplementary or excess grants (Article
91).

4. If parliament in any financial year fails to make any grant the

President, upon the advice of the Prime Minister, would have power
to draw from the Consolidated Fund, the necessary funds for a
period not exceeding 60 days, stipulated in the Annual Financial
statement for that year [Article 92(3).

As to these financial powers of the President the last one as

provided in Article 92(3) is undemocratic and against the concept
of rule of law. Because this power of the President has curtailed the
power of parliament in financial matter. No such provision exists in
India, Britain or USA, for in a true democratic system not a single
penny from the public purse can be spent by the executive without
the prior approval of the parliament.

The AL Government (1996-2000) introduced four Bills in the

winter session of 1998 with a view to giving legal shape to a peace
agreement it signed with the insurgents in the Chittagong Hill
Tracts. The opposition BNP which sought to resist the passage of
the agreement as well as the Bills, turned to the President
requesting him to send back the Bills for reconsideration of the
parliament if the ruling AL passed them using its absolute majority
in the House. The Government, however, adopted a fraudulent
tactic, introducing them as money Bills and thereby practically
limiting the authority of the President to exercise discretion had he

Fft-
Constitution, Constitutional Law and Politics 261

wanted to it. The Public Safety Act 2000 was also introduced and
passed as money bill.

D. Judicial Power of the President

The judicial power of the President is provided for in Article 49
of the Constitution. It says that the President shall have power to
grant pardons. reprieves and respites and to remit, suspend of
commute any sentence passed by any court, tribunal or other
authority. This power is also called the pardoning power or the
prerogative of mercy. The object of conferring this judicial power
on the President is to correct possible judicial errors, for no human
system of judicial administration can be free from imperfections'.
Taft, C.J. remarked that executive clemency exists to afford relief
from undue harshness or evident mistake in the operation of
criminal law. The administration of justice by the courts is not
necessarily always wise or certainly considerate of circumstances
which may properly mitigate guilt. The power to pardon is,
therefore, a check entrusted to the executive for special purposes
such as to ameliorate or avoid a particular criminal judgment. 2 This
power of pardoning exercised by the President of Bangladesh is
practically similar to that in America or England or in any other
country. Like in all other countries the President of Bangladesh
exercises this pardoning power in accordance with the advice of the
Prime Minister. A short explanation of some legal terms used in
article 49 has been given below for better understanding of the
advanced students.

Basu. Introduction to the Constitution of India, 2rd. ed, Part- 11. P. 21

2 Ex. Pane Grossman (1924) 267 US 81: 69 L .527 Ref. Shukia, V. N. Ibid. P.240
262 The President: Position, Power and Function

Pardon A pardon completely, absolves the JTjnder from all

and punishments and disqualication and
places him in the same position as if he had never
committed the offence.
Reprieves A temporary suspension of punish,nent fixed by law.
Respites . Postponement to the future execution of a sentence
or awarding a lesser punishment on some special
grounds e.g. the pregnancy of a woman offunder.
Commutation: It means exchange of one thing br another.
Here it means substitution of one form of
punishment ,for another of a lighter character e.g.
simple imprisonment for rigorous imprisonment.
Remission . It means reduction of amount of sentence without
changing i/s character e.g. a sentence of one year
may be remitted to six months. -

E. Miscellaneous Powers of the President

Besides above mentioned powers the President has to perform
some other functions like administration of some oaths. The oath of
the Chief Justice, the Prime Minister, Minister, Deputy Ministers,
Speaker and Deputy Speaker etc. are administered by the President
under the Third Schedule of the Constitution. Likewise as the Head
of the state, the President sends and receives Ambassadors and
other diplomatic representatives. All treaties with foreign countries,
annual reports of the Public Service Commission, of the Auditor—
General are submitted to the President who causes them to be laid
before parliament. (Articles 145A, 141, 132).

The Power of the President in a Caretaker Government

Article 58C of the Constitution gives some special power to the
President with regard to appointment of the Chief Adviser of the
Caretaker Government. Recently this power and his assumption of
the post of the Chief Adviser to the Caretaker Government has
come under huge criticism. For details, see chapter 23 of this book.
Constitution, Constitutional Law and Politics 263

CHAPTER XIV

ORDINANCE MAKING POWER OF

THE PRESIDENT
The ordinance' making power of the president is provided for in
article 93 of the Constitution. It is also called the law making power
of the President.

Justification for Ordinance Making Power of the President

Generally the supreme power to make laws for a country or any
part thereof belongs to parliameiut constitutions of some
developing countries provide for provision of legislation by the
hdfThëutive in some special situations. The Constitutions
of India 2 . Pakistan 3 an an cy a e rovide for such provisions.
The power to make ordinances is justified on the ground that the
to iii eet unforeseen or
extreme necessity when the ordinary law making body i.e.
parliament is not in session or is dissolved. It is not difficult to
imagine the cases when ordinary law-making powers may not be
able to deal with a situation which may suddenly and immediately
arise. It is, therefore, not undemocratic to invest executive with law-
making power to take immediate action to face an exceptional
sitttation'hile adopting the constitution of India Dr. Ambedker,
the chairman of the drafting committee explained the need of the
power as follows:
\-/-'The emergency must be dealt with and it seems to me that only
solution is tftcoiifuppJi the president the power to promulgate a
law which will enable the executive to deal with that particular
situation because it cannot resort to the ordinary process of law
because again, exhvpothesi, the legislature is not in session

Ordinance : According to old authorities, ordinance means a declaration b y the

Crown in answer to a petition by the Commons enquiring as to the law relating to a
particular matter as co[icd with a statute laying down new law. The term is also
sometimes given to a various kinds of prerogative orders issued by English Kings prior
to the Bill of Rights of 1688
Art. J23jq ordinance making by the Presidcnand Art. 213 for Governors.
Art. 89 of the Pakistan Constitution provides for ordinance making by the President
and Article 128 for Governors.
264 Ordinance Making Power of the President

Though this exceptional power is not undemocratic, there is a

danger in it. It carries with it the risk of abuse of power.

History of the Ordinance Making Power

The real history of ordinance making power in the sub-continent
traces back to the colonial constitution i.e. the Government of India
Act, 1935. This Act introduced in India, for the first time,
representative legislatures at both the provinces and center. The
structure of the Act was to introduce a parliamentary system to
India but the British reserved certain safeguards which were alien to
their own system. They retained with the Governor-General and
Governors power to disallow Bills, to certify Bills, to legislate by
ordinances. They did it deliberately to safeguard their colonial
interest. It is for this the Act was called by Winston Churchill, 'a
gigantic quilt of jumbled crochet work, a monstrous monument of
shame built by pigmies." This Act contained two provisions on
ordinance-making.
First, article 72 of the 9th Schedule provided for-
"The Governor-General may, in cases of emergency, make and
promulgate ordinances for the peace and good government of British
India and any part thereof."
It is worthy of notice that the life of ordinances was to be for 6
months from the day of its promulgation and there was no
obligation cast upon the Governor-General of placing ordinances
before the Indian Legislature upon its first meeting after
promulgation of such ordinance.
Second, section 42 of the Government of India Act, 1935
provided for -
"If at any time when the Federal Legislature is not in session the
Governor-General is satisfied that circumstances exist which render
it necessary for him to take immediate action, he may promulgate
such ordinances as the circumstances appear to him to require."
It was also provided that such an ordinance was to be laid before the
Federal Legislature and should cease to operate at the expiration of six
weeks from the re-assembly of the legislature.

Hodson. I IV, The Great Divide: Britain-India-Pakistan, (Karachi: Oxford University

Press. 1985), P.48
Constitution, Constitutional Law and Politics 265

The pattern of the ordinance law as provided for in article 42 of the

Government of India Act, 1935 was retained in both the Indian
Constitution and the Pakistan Constitution.' Article 123 of the Indian
Constitution gives legislative power to the President to promulgate
ordinances between sessions of parliament only if he is satisfied that
circumstances exist which render it necessary for him to take immediate
action.
During Pakistan period till the Constitution of 1956 was adopted the
country was run oil basis of the Act of 1935 where section 93
(allowing for dismissal of provincial governments) and the ordinance
making instruments were freely used. Like the Constitution of India the
Constitution of Pakistan of 1956 also retained the ordinance making
power. After the imposition of Martial Law in 1958 legislation by
ordinances became the rule rather than the exception. The slogan 'Ayub
Khan ruled by ordinance, not by law' was widely used to highlight the
democratic struggle of the time, particularly in East Pakistan. This
movement to attain democratic and economic emancipation ultimately
led to the birth of Bangladesh. But unfortunately the Constitution of
Bangladesh has also retained this colonial provision.

Ordinance Making Provisions in Bangladesh Constitution

Condition Precedent to an Ordinance
Under Article 93(l) the President may make ordinance in following
two situations-i) Parliament is not in session ; or ii) Parliament stands
dissolved. In these two situations tie President can promulgate ordinance
only when he is satisfied that circumstances exist which render
immediate action necessary.

Legal Status of an Ordinance

As to the legal status of an ordinance article 93(1) says that an
ordinance shall, from its promulgation, have the same force and effect as
an Act of parliament. This is because the power to issue an ordinance is
not an executive power of the president; it is his legislative power which
is devised to meet urgent situations and necessary for peace and good
government in the country. The only difference between an Act and

Ordinance making power of the President was provided for in article 69 and for the
Governor in Article 102 of the Constitution of 1956.
266 Ordinance Making Power of the President

Ordinance is with regard to the duration. Like an Act of parliament an

ordinance may repeal parliamentary enactments or an earlier ordinance or
may give retrospective effect to its provisions)

Limitations of an Ordinance
I) What cannot lawfully be made under the Constitution by an Act
cannot be done by an ordinance.
ii) An ordinance cannot alter or repeal any provision of the
constitution; and
iii) An ordinance cannot continue in force any provision of an
ordinance previously made.

Conditions Subsequent to an Ordinance

i) Every ordinance made during the recess of parliament must he laid
before parliament at its first meeting following the promulgation of it, if
it is not repealed earlier.
it) Once the ordinance is placed in parliament, a corresponding Bill
must be passed in 30 days; otherwise it will ce ' to have any effect at
the expiration of 30 days.
iii) Before the expiration of 30 days parliament may pass a resolution
disapproving the ordinance and if such a resolution is passed, the
ordinance will cease to have any effect upon the passing of the
resolution.2

Sac of U.P.V. .4liquo J3egum 1052 FC'R 110

How an Ordinance Becomes an Act of Parliament
All ordinances promulgated before the session starts must be, by operation of law i.e.
under the authority of Article 93 of the Constitution, laid before parliament at its first
meeting of the Session. Lay before parliament means to inform parliament i.e. to
distribute the copies of oriir ices Irmenirs of parliament. This is the first stage
(i.e. laying before parliament). After so laying the minister-in-charge (here the
Minister of Law and Parliamentary Affairs) must give notice to the Secretary of
Parliament of his intention to move for leave to introduce Bill relating to any or all of
those ordinances. On the basis of this notice the motion for leave to introduce the Bill
or Bills shall be entered in the orders of the Day for a day meant for government
business. When the item is called the minister-in-charge shall move for leave to
introduce the Bill or Bills. The leave being granted by the Speaker the minister shall
introduce the Bill (second stages i.e. the introduction). After this introduction the Bill
shall follow the regular procedure of an ordinary Bill.
Constitution, Constitutional Law and Politics 267

Before discussing the impact of ordinance making over the

constitutionalism in Bangladesh it would be convenient to give a
statistics of ordinance since 1973.

Statistics of Law and Ordinances Passed by Parliament

The First Parliament
7 April. 1973-17 July. 1975
Session Total Law I Number of Hills passed Total Ordinances
Passed by which have been promulgated between
parliament initiated from two sessions
ordinances
1st 0 (1 0
2nd 19 10 10
3rd 15 8 8
4th 31 IS 16
5th 32 9 9
6th 13 12 14
7th 2 1
8th 42 34+1* =35 34
Iota! 154 1 90 94
* This bill was introduced via ordinance in the 7th session but remained
unresolved and was later passed in the 8th session.

The Second Parliament

2 April. 1979-2 March, 1982
1st 1 0 268*
2nd 5 0 0
3rd 16 5 6
4th 15 3 4
5th 14 4 4
6th 4 3 - 4
7th 10 0 0
8111 0 9
L Total
0
65 15 295
* The 8th session of the First Parliament ended on 17th July. 1975. From this
17th July to 15th August, 1975 Mujib promulgated 9 ordinances. Later before
the start of the 2nd Parliament Mustaq promulgated 9. Sayem promulgated
123 and Zia promulgated 127 ordinances. Of these 268 ordinances 159
(excluding 9 ordinances promulgated by Mujih before his death) were given
268 Ordinance Making Power of the President

auto-legality by the 5th Amendment. These ordinances were not formally

introduced as Bill in parliament and as a result, they were not transformed into
Acts of Parliament; they exist till today as valid law in the name of ordinances
so for as they are not repealed or otherwise amended by parliament or by any
subsequent ordinance.

The Third Parliament

10 July, 1986 --l3 Jul y. 1987
1st 0 0 3071
2nd 1 3
3rd 19 6+22=8 6
4th 19 6 7
iota! 39 14 323
Martial Law was re-imposed on 24th March, 1982 Article. 93 of the
Constitution was revived under the Martial Law Proclamation and before the
start oithe 3rd Parliament Ershad promulgated 307 ordinances. None of these
ordinances was introduced in the 1st session of the 3rd Parliament as Bill and
they could not become Acts of Parliament. But all of them were given auto-
legality by the 7th Amendment Act and till now they exist as valid laws in the
name of ordinances so far as they are not repealed or otherwise amended by
parliament or by any subsequent ordinance.

2 3 ordinances were introduced as Bills in the second session but they were not
passed i.e. they remained as unresolved / immatured Bills before the session
ended. 2 of them were passed in the 3rd session.

The Fourth Parliament

25 April, 1988-25 August, 1990
1st 38 33 34
2nd 7 7 7
3rd 21 9 9
4th 17 4 4
5th 29 26 26
6th 30 10 12
7th 0 0 0
1 otil 1 - 142 89 92
Constitution, Constitutional Law and Politics 269

The Fifth Parliament

5 April, 1991-18 November. 1995
1st 18 18 - 44
2nd 10 1 I
3rd 4 2 10
4th 18 10+5 = 15 10
5th 0 0 0
6th 18 4 4
7th 18 4 4
8th 12 4 4
9th 0 0 4
10th 9 3 0
11th 6 4
12th 7 4
13th 2 2 3
14th 6 1 I
15th 7 0 0
16th 4 0 0
17th 7 1 1
18th 9 3 4
19th I 1 2
20th 8 1 2
21th 8 2 0
22th 1 0
Total 173 70 102

The Sixth Parliament

19 March, 1996-25 March, 1996
1st 1 0 1 19
Total 1 0 1 19

The Seventh Parliament

14 July, 1996-13 July, 2001
1st 19 15 15
2nd 1 0 0
3rd 13 4 4
4th 0 0 1
5th 4 IN
0
6th 4 0 0
7th 4 0 0
270 Ordinance Making Power of the President

8th 12 0_____ 0
9th 4 0
I oth 0 0 0
11th 8
12th 14 0
13th 8 0 0
14th 0 0 0
15th 1 0 0
16th - 8 0 0
17th 4 00
18th I 0 0
19th 8 0 0
20th 7 0
21st
22nd 21 0 I
23rd 29 0 ________ S _________
iota! - 190 20 21*

Onc progressive feature is very much evident in the 7th parliament and
this is the gradual slowing down of the resorting to ordinance making in between
two sessions of parliament.

The Eighth Parliament

28 October, 2001-27 October. 2006
Constitution, Constitutional Law and Politics 271

19th 0 0 0
20th 15 I I
21st 5 0 0
22nd 13 0 0
23rd 15 0 0
Total 184 6 6

Ordinances after the 8th Parliament'

28 October, 2006—Deceniber, 2007
SI No. Name of the Ordinance
1 1 11t9t
[he Code oiCrjminal Procedure (Amendment) Ordinance
3 The Special Powers (Amendment) Ordinance
4 The Code of Criminal Procedure (2nd Amendment) Ordinance
5 1T-Ji1 Prit 91l ( fa1e) (iteBm) aiitt
6 t- (1trt1) TRWt
7 (ei1 T ) ITtC1
8 Criminal Law Amendment (Amendment) Oridinance
The Members of Parliament (Remuneration and Allowances)
(Amendment) Ordinance

II Tt T1 (t° 11 1flt9) 1zwt

fi (t it 'a
11 Bangladesh Binian Corporation (Amendment) Ordinance
I cr ( a 021 q ) itrt
tttlT Iic (1t1tIo) Ot3ItPt
L
Z'T1T'at afl1 (t?fl) OTttTI
ttT Ift )79t
Bangladesh Flag Vessels (Protection) (Amendment) Ordinance
The Presidents (Remuneration and Privileges (Amendment)
Ordinance
21 The l'aurashava (Amendment) Ordinance
22 flt CI'fl (offit9t

The tenure of the 8" parliament under the BNP led 4 party alliance government
was completed in October, 2007. Because of partisan role pla y ed by the President
lajuddin Ahmed and CEC MA Aziz the election for 9tI parliament could not held
in time and in the wake of a huge political unrest the army interfered into politics
and new caretaker government led by Dr. Fskhruddin Ahmed was fbrmed on 12th
January. 2007 and this government is now running the country by promulgating
ordinances one after another as there is no parliament.
272 Ordinance Making Power of the President

Ordinances in 2008

Demerits and Effect of Ordinance Making over

Constitutionalism in Bangladesh J..
As mentioned earlier the philosophy underlying(the ordinance
making power is that to meet an unforeseen and urgent situation
which may suddenly arise during the recess of parliament the
executive should be armed with legislative measures. But this
discretionary power has a danger because it carries with it the risk
of abuse of power for political end that has been the fact of
ordinance making in Bangladesh.
Constitution, Constitutional Law and , Politics (273
I q

Firstly, during the recess of parliament the President may

.promuluateordinance if he is satisfied tht a circumstances exist
—re nder immediate action necessary. The ordinance making
power, therefore, depends absolutely upon thesLt b iect. -
sat i sfactionfjJjjc1ent. It is not an objective satisfaction in the
sense that whether or not the President is satisfied that
circumstances exist rendering immediate actiory necessary is a
fiâffëjhTcfjjs\nntajistjcjab one and the courts can not be
called upon to determine its existence by the application of any
objective testt is to be noted here that the satisfaction here is not
the ersonal satisfaction of the President In reality it is the
satis actio o t e ca met on w ose .. dvi the president exercises
this power. e ordinance issued by President may, therefore, be
caIlëas 'cabinet-made law.' s subjective satisfactiQoof the
presideht has enabled the executive to play an uncontrolled hand in
to meet and emergency situation
but just with a 7ièw to by-passing parliament thëexécutive makes a
huge number 1of ordinances during every recess of parliament. With
Th ôlitical purpose government makes all black laws through
ordinances. Bureaucrats as well as the government prefers the way
of ordinances as it simplifies matters for them. The ordinance
becomes law with immediate effect on being signed by the
President and gazetted. Ordinances are framed in the privacy of the
ministries and passed by the cabinet without any public -t^sure.
Thëitistics given in this chapter shows that the number of
ordinance placed for approval before parliament is always far larger
than the general Bills introduced. The statistics also shows that
between 1973 to 1996 940 ordinances in total were promulgated
whereas the number of laws passed by parliament in this period was
794 in total out of which 293 originated from ordinances. If we
exclude the number of ordinances promulgated during the martial
law period, even then we find that 49.33% of the total laws in the
country have originated through ordinance, an the average number
of ordinances promulgated in every recess of par iam re
than 7. Sometimes ordinances are made 4 or 5 days before the
parliament session starts and sometimes a parliament session only
approves ordinances and no other legislative function is done at all.

Brohi. A.K. Fundamental Law of Pakistan. Ibid. P.283

One may also say it executive law' but here one must be careful because this type of
executive law is not a subordinate law. See, details. PP. 237-238
274 Ordinance Making Power of the President

The second session of the 4th Parliament, first, thirteenth and

the 5th Parliament provide glaring example of
it. This tendency of the government as pointed Out by a
commentaIiövs an attitude of complete disregard for the
parliamentary culture and reluctance for building political
institutions. This is an attitude that has become ingrained in our
Lciety resulting1in the deep morass into which politics in this
c 7 hiik 1 For this widespread misuse of ordinance making
power by-passing parliament it may typically be said that the
Bar.ghdesh parliament does not legislate but legitimises and
legislation by ordinance has become a rule-a regular work of the
government rather than the exception.

,. 'One point which is very important to mention here is that

"- w hethfthawiel is--a- democratic one or not is not
the real question; the question is that such laws are made by-passing
parliamnt:1t, therefore, negates all the safeguards of law-making
on - the —one hand, and it reduces the role of parliament into a
minimum on the other hanTãdit institutionalises only backdoor
democracy. When ordinances are promulgated 4 or 5 days before
the session starts, it shows utterdisrejaf to-1hsiprernacy of
parliament. - -

Secondly, 1gis1athn by ordinance is contradictory to the

concept of..njJof law. Rule of law as distinguished from rule of
man or [ p art y jmeans rule of that law which ispassediri dina
\2.1emocratically ejected parliamenj/ after adequate deliberation and
discussion) When a Bill is formally iini5dücedin parliament, it
iEITh go throug a number o stages- first reading, second
reading, committee stage, third reading, etc. At every stage there is
scope for discussion both in parliament and in public media. This
scope of adequate deliberation and debate over a Bill creates an
environment to remove undemocratic provisions from it; public
opinion can be judged and suitable amendment introduced.
Ordinances, on the other hand, are framed in the priYacy of the
Ministries and passed by the cabinet without any public exposure.
Though an ordinance is introduced in parliament as a Bill, it does

1 Choudhury, Nazim Kamran,

Legislation by Or4inance,. P. 22 (A paper published by
CAC in 1995)
Constitution, Constitutional Law and Politics 275

not go through all the stages of safeguards of law making. Because

once an ordinance is placed in parliament, a corresponding Bill
must be passed in 30 days; otherwise the ordinance lapses. So the
mover of the Bill argues for speedy consideration and adoption of
the Bill. The argument given is that since the provisions of the Bill
have already been given lawful effect, there is no need for detailed
discussion. Since the larger part of total laws in the country are
coming through ordinances and since these ordinances, however
undemocratic they may be, get quickly approved without debate
under the sweeping power of article 70, it may definitely be said
that it is the abuse of the ordinance making power which has been a
great hindrance to the ensuring rule of law in Bangladesh.

It is to be noted here specifically that A.K. Brohi, in his

admirable and laborious work, 'Fundamental Law of Pakistan' calls
ordinances 'temporary laws' containing with their own womb seeds
of their own destruction) But Brohi forgot about one vital point
that these laws, though they contain with their own wombs seeds of
their own destruction, leave as well behind powerful seeds of rule
by tyranny; they die after giving a brutal birth of undemocratic law.

Thirdly,)except in Bangladesh, India, Pakistan and some other

developing countries this ordinance making power is not found in
true democratic countries. The British monarch or the US President
does not have any such law making powerX.Ordinance making
power as is practiced in Bangladesh is totally unknown in true
democratic countries. If any urgent situation demanding a
legislative action occurs, there is provisiop for emergency
summoning of parliament both in USA and UK.,)

Fourthly, legislation by ordinance is against the principle of

institutionalisation of democrac Since all the ordinances originate
1ihhan s an in uence of the bureaucrats, this institution i.e.

Brohi, A. K, Fundamental Law of Pakistan, Ibid, P.283

2 One must not confuse 'ordinances' with Orders-in-Council in British legal system. In
British system Orders-in-Council are made by the Privy Council of Her Majesty but
these are aIl suhordiftate laws and are made under powers given in a Parent Act.
[Factsheet on Statutory Instument, Factsheet No 14 (1993) published by Public
Information Office, House of Commons. London]
276 Ordinance Making Power of the President

the bureaucracy is getting an easy hand to defy and flout the

supremacy of parliament which is against the norms of
constitutionalism. Because the bureaucracy must be under the
absolute political as well as legal control of parliament and of
cabinet and ministers. To give democracy an institutionalised shape
every institution of democracy should be allowed to discharge its
usual function. Law-making function should, therefore, be
exercised by parliament except in grave emergency situation.
Legislation by ordinance is also against the political belief, ideology
and commitment of the government and peoples representatives.
Because people elect the government and parliament not to allow to
make law by ordinances but to see that their elected representatives
i.e. legislators are performing the function of legislation on their
behalf.

Fifthly, ordinances are issued even on financial matters

violating the constitutional embargo. Article 83 of the Constitution
specifically lays down, 'No tax shall be levied or collected except
by or under the authority of an Act of Parliament'. But there are
some ordinances by which the government has imposed taxes. One
of them is the Value Added Tax Ordinance, 1991 (Ordinance 26 of
1991). This law introduced new taxation with vast implications on
trade, industry, agriculture and almost every economic activity. It
has expressly violated the provisions of article 83 of the
Constitution. Because an ordinance, though it has the same effect
and force as an Act of parliament, is not necessarily an Act of
parliament. A fundamental principle of jurisprudence is that no law
which has penal or punitive financial implication shall be given
retrospective effect. But the Value Added Tax Bill, 1991 originated
from the Value Added Tax Ordinance (Ordinance no 26 of 1991)
was passed by parliament on 9th July and was given effect from the
1st July, 1991. Likewise, ordinances no 17, 28, 29, 30 and 31 of
1991 dealt with financial matters and all of them were given
retrospective effect by parliament while transforming then into
Acts.'

Legislation by Ordinance. Ibid. P. 16

Constitution, Constitutional Law and Politics 277

Usurpation of the Function of the Legislature by the

Executive and the Role of the Court
If we look at the statistics of the first parliament we find that it
made 154 Acts out of which 90 originated from ordinances which
amounted to 58.44% of the total law passed by it. Likewise, the
statistics of the 5th Parliament dictates that it made 173 Acts out of
which 70 originated from ofdinances which amounted to 40.46% of
the total law passed by it. Also the statistics of the 7th Parliament
LIP to its second session dictates that it made 20 Acts out of which
15 originated from ordinances. Particularly these three parliaments
in the constitutional history of Bangladesh were mostly
democratically elected parliaments and the governments formed by
them were truly democratic governments. But the statistics of
ordinance making during the recess of parliaments by these
democratic governments has definitely outnumbered the statistics of
ordinance making by the two military governments. Even after
returning to a parliamentary system, when the period between
sessions of the House cannot be more than 60 days, the government
is resorting to emergency provisions of ordinance for the most
mundane of reasons') An ordinance is an emergency measure and
should be resorted to only in cases where delay in the enactment of
any measure is calculated gravely to affect the interests of any
section. Can anyone seriously contend that this growing trend of
issuing ordinances by-passing parliament conform to that principle?
Definitely no. And this trend is, as the Indian Court says, nothing
but a 'subversion of the democratic process' and colourable exercise
of powers which amounts to a fraud on the Constitution. 2 The
courts of our country should come forward to declare such a
colourable exercise of power by the executive unconstitutional.
Because the executive cannot usurp the function assigned to the
legislature under the Constitution.

Where Does the Real Problem Lie?

The main instruments behind the promulgation of ordinances
are the bureaucrats. Our bureaucrats have become accustomed to
operating outside parliamentary scrutiny. This is a result of our

I Choudhurv. Nazm Kaniraii. Legislation by Ordinance, Ibid, P. 9

2 D.C. Wadhwa V State of Biher( 1987) ISCC 378
278 Ordinance Making Power of the President

historical political development, long periods of martial law and

absence of legislatures. They prefer the way of ordinances as it
simplifies matter for them. This is why sometimes it is strongly
argued that bureaucrats are mainly responsible for ordinance
making.' But the real problem lies with the political head of the
government i.e. the Prime Minister. The lack of political and
institutional education of the ministers including the Prime Minister
is the main reason. Because, as mentioned by a researcher, if the
government demonstrates its political will and its respect for
parliamentary practices no civil servant will venture to suggest to
his minister for the promulgation of ordinances. Similarly
legislation by ordinances may be prevented if any member of a
cabinet simply questions or wants to know the immediacy of such
legislation. 2 But it is the fact that in most cases it becomes almost
impossible for a minister to ask such a question where the Prime
Minister keeps a dominating attitude. Actually the very starting of
constitutionalism in Bangladesh got a serious set back at the hand
of Sheikh Mujib, the founding president of this country. It was
Sheikh Mujib who and under whose advice, while he was the Prime
Minister, the president misused this ordinance making power
almost in a naked way. Since the Constituent Assembly was not
given any law making power all laws in the country before the first
parliament was constituted were made by presidential orders (see
more P. 438). This trend of law making by the executive by-passing
and ignoring the role of the parliament has left a far reaching bad
impact in the development of constitutionalism in Bangladesh.
What then do we really need to stop this by-passing parliament? We
need to develop a parliamentary culture or tradition and to create
such a tradition we are greatly in need of qualified and educated
political leadership which we are acutely lacking since our
independence. Because as said by Montesquieu, 'at the birth of
societies it is the leader of the Commonwealth who create the
institutions; afterwards it is the institutions that shape the leaders"3

Most of the discussants who were existing memehrs of parliament in the seminer
"Legislation by ordinance" expressed their views that bureaucrats are responsible for
suggesting legislation by ordinance. (Summary proceeding of workshop on
Legislation by Ordinance, organised by CAC, held on July 15, 1995.)
2 Choudhury, Nazim Kamran. Legislation b y Ordinance, [bid, P. 6
Quoted by Choudhury, Dilara, ibid. P.16
Constitution, Constitutional Law and Politics 279

CHAPTER XV

EMERGENCY PROVISIONS
What is Emergency?
There are emergency provisions in the constitutions of some
countries but nowhere it is exactly defined what emergency is.
Normally emergency means an unexpected occurrence requiring
immediate action. In Bhagat Singh V . King-Emperor Lord Dunedin
said, "a state of emergency is something that does not permit of any
exact definition. It connotes a state of matters calling for drastic
action."' Stiphen P. Marks says that emergency is a situation which
results from temporary condition, which place institutions of the
state in a precarious position, which leads the authorities to feel
Justified in suspending the application of certain principles. 2 Strictly
speaking, the concept of emergency, from the view point of
constitutional law, means the suspension of and restriction over
certain fundamental rights of citizens in order to deal with a
situation when the security of the state is threatened or the national
interest is in peril. From the Bangladesh constitutional point of
view, emergency means the existence of a condition whereby the
security or economic life of Bangladesh or any part thereof is
threatened by war or external aggression or internal disturbance.

Need for Emergency Provisions

Providing for emergency provisions in the constitution is not an
undemocratic something. Because the security of the state as a
whole is of greater importance than the liberty of some individuals.
The state is to safeguard the liberties of all the people within its
territory. If the state itself is destroyed or in great peril the liberties
of the individual citizens stands annihilated. As Shukia V.N. says-
"Events may take place threatening the very existence of the
state, and if there are no safeguards, against such eventualities, the
state together with all that is desired to remain basic and immutable,
will be swept away."3
It was also held in R. V . Halliday, -

1 581-A. 169, 172. Source. Jain, M.P. Ibid, P. III

2 Quoted by Shahnaz Iluda. Human Rights under Emergency Situations.
The Dhaka University Studies Part-F. Vol. III
Shukia. V.N. Constitution of India, Ibid, P.63 I
280 Emergency Provisions in the Constitution

"However precious the personal liberty of the subject may be,

there is something for which it may well he, to some extent,
sacrificed by legal enactment, namely national success in the war, or
escape from national plunder or enslavement."

The idea of suspension of some fundamental rights in time of

emergency is common to all legal systems. Somewhere the
constitution itself and somewhere a special law makes provisions in
legal terms for situations of crisis when states of emergency may be
invoked.

The necessity lb, suspension of certain rights in times of

emergency is internationally recognised. Almost all regional and
international instruments of human rights make provisions for
suspension of rights in cases of emergency. Article 4(l) of the
International Covenant on Civil and Political Rights, 1966, article
15 of the European Convention for the Protection of Human Rights
and Fundamental Freedoms, 1950 and article 27 of the American
Convention on Human Rights, 1969 make, more or less, the same
provision to the effect that in time of war, public danger, or other
emergency that threatens the independence or security of a state
party, it may take measures derogating from its obligation under the
convention.

Thus providing for emergency measures suspending some

fundamental rights is allowed both nationally and internationally.
But the problem is that there is a danger in investing such
discretionary power with the executive authority. Because such a
provision carries with it the risk of abuse of power if stern
safguards against its abuse are not provided for specifically. Most
governments in developing countries abuse emergency power for
political purpose; they use it as a necessary weapon to suppress the
opposition and to perpetuate power; they thereby destroy the
democratic institutions. The Secretary General of the International
Commission of Jurists in his introduction on an ICJ report on States
of Emergency opined that the most serious human rights violations
tend to occur in situations of tension when those in power are or

Quoted by PatwarL A. f t M. Malizul Islam, Liberty of the People Britain and

Bangladesh, (Dhaka: Institute olHuman Rights and Legal Ailairs, 1987). P29
Constitution, Constitutional Law and Politics 281

think they are threatened by forces which challenge their authority

if not the established order of the society. This is why he thinks that
there is an understandable link between cas of grave violations of
human rights and state of emergency.'

Classification of Emergencies
From the view point of territorial extent emergency may be of
two types : National Emergency: and Partial or State Emergency.

When emergency is declared, whatever may be the reason

behind the declaration, throughout the whole territory of the state, it
is called national emergency. On the other hand, when emergency is
declared in a particular area of a unitary state or in a state of a
federation, it is partial or state emergency. For example, article 352
of the Indian Constitution provides that emergency may he declared
throughout India or any part thereof. Likewise, article 356 provides
state emergency. The Constitution of Pakistan also provides the
same provisions.2

On the basis of its nature emergency may be of following three

types: A. Emergency of War,
B. Emergency of Subversion: and
C. Economic Emergency.

Emergency of War
When emergency is declared as a result of war or external
aggression, it is called emergency of war. For example, emergency
of war was declared in British India during the Second World War.
This emergency was declared by the British Government under the
authority of the Emergency Power (Defence) Act. 1939. In
independent India emergency of war was declared for two times.
First in October, 1962 when China launched a massive attack on
India's North-Eastern border. Emergency was declared under article
352 on account of external aggression. Second in December, 1971
when Pakistan attacked India.

('i Report on States of Emergency : iiiefr impact on human Rights, (Geneva 1983)
Quoted by Iluda, Shahnaz, Ibid, P.101
National emergenc y is dealt with Article 232 of Pakistan Constitution and state
cmcrgcncy is provided for in Article 234.
282 Emergency Provisions in the Constitution

Emergency of Subversion
When emergency is declared due to internal disturbances within
the state i.g. to suppress civil war or any anti-government
movement or a riot in any particular area of the country or to face
any natural disaster, it is called emergency of subversion. For
example, in Bangladesh emergency was declared four times due to
internal disturbance.

Economic or Financial Emergency

When emergency is declared with a view to overcoming a
situation in which the economy of the state is about to breakdown
or has broken down, it is called economic emergency. It is worthy
of notice here that from the broader point of view economic
emergency should he included in emergency of subversion but
constitutions and laws of some countries provide specifically, in
addition to emergency of subversion, for economic or financial
emergency. For example, article 360 of the Indian constitution
specifically provides thatdf the president of India is satisfied that a
situation has arisen whereby the financial stability or credit of India
or any part of it is threatened, he may declare emergency. Similar
provision is provided for in article 235 of the Pakistan constitution.
The constitution of Pakistan of 1956 also provided for such
provisions (article 194). In USA economic emergency was declared
by President Roosevelt under the authority of the National
Industrial Recovery Act, 1930. By declaring emergency Roosevelt
adopted New Deal Policy to overcome world wide financial
depression.

Distinction between Emergency of War and

Emergency of Subversion
I. Emergency of war is connected with war or external
aggression whereas emergency of subversion is connected with any
type of internal disturbance within the territory of the state.
2. Generally emergency of war is declared throughout the
country but emergency of subversion may be declared to any part of
the territory.
3. Emergency of war is related to the question of sovereignty of
a state because it is declared when the sovereignty of a state is
Constitution, Constitutional Law and Politics 283

threatened. But emergency of subversion has no relation with the

qUestion of sovereignty of a state.
4. The immediate purpose of emergency of war is to defend the
sovereignty and security of the state whereas the purpose of
emergency of subversion is to suppress the civil war or anti-
government movement.

Double Emergency
Somewhere provisions of double emergency is visible.
Emergency is of three kinds which have been discussed earlier.
This double emergency is not a class apart. While one type of
emergency is in operation declaration of another type of emergency
is called double emergency. For example, in India the proclamation
of emergency of war made in December, 1971 was still in operation
when another proclamation of emergency of subversion was made
on 26 June. 1975 on the ground that security of India was
threatened by internal disturbances. This double emergency
continued for a long time. When Janata Party came to power in
March, 1977 replacing the Indian National Congress the emergency
Of subversion declared in 1975 was withdrawn on March 22, 1977
and the emergency of war was withdrawn on March 27, 1977. The
provision of this double emergency was inserted in the constitution
by adding clause 9 to article 352.

History of Emergency Power

In Indian Sub-Continent the history of emergency power of the
executive traces back to the Government of India Act, 1935. Under
article 102 of the Act the Governor-General could declare
emergency if in his opinion a grave emergency existed whereby the
security of India was threatened whether by war or internal
disturbances) This provision which is fully alien to the British
democratic system was kept candidly as a weapon by the British
ruler in India to perpetuate their colonial design. But unfortunately
this undemocratic and democracy-destroying provisions continued
to have place in the subsequent constitutions in the Sub-Continent

Reference. Keith. Arthur Beoriedale, A Constitutional history of India 1600 -1935.

2nd ed, (London: Methuen & Co. Ltd. 1969), P. 364
284 Emergency Provisions in the Constitution

although freedom was achieved and countries became independent

sovereign states.
Keeping in line with the 1935 Act, the Indian constitution in
article 352 provides for emergency provisions to the following
effect: "352. Proclamation of Emergency.
(I) If the President is satisfied that grave emergency exists
whereby the security of India or of any part of the territory thereof is
threatened, whether by war or external aggression or internal
disturbance beyond the power of a Provincial Government to control,
he may issue a proclamation of emergency."

Following the same line, the 1956 constitution of Pakistan

incorporated this emergency provision in article 1 9 I. The 1962
Constitution of Pakistan also contained the same provision.

The experience of the application of the emergency provisions

in Pakistan was extremely bitter. In its 23 year long history Pakistan
witnessed a series of action taken by the ruling elite or sometimes
by one individual in the office of the President under the garb of
these emergency provisions.' The two Governor-Generals of
Pakistan Golarn Mohammad and Iskandar Mirza used this
emergency powers to perpetuate their rule and thereby they
destroyed political institutions. The emergency which was
proclaimed in 1965 due to war with India was not withdrawn till the
mass-upsurge forced Ayub Khan in 1969 to leave power whereas
the war was over in three weeks. During this continued emergency
the political opposition parties were suppressed and hundreds of
citizens were put into prison for years together. Almost all the
political leaders of Pakistan particularly the prominent ones in the
former East Pakistan were extremely critical of this harsh law. The
Awami Leaque in particular was committed since the formation of
the United Front in 1954 to repeal not only the black laws but also
to remove any scope or prerogative enabling an individual to retard
the process of democracy. The experience of Pakistan showed that
whenever such power was enshrined in the constitution, however
well intentioned the laws might have been, the tendency to use or in
most cases misuse them was overwhelmingly predominant. These

Ahmed. Moudud. Rang/odes/i The En, of Sheik/i Mujibur Ra/onan. Ibid, P. 102
Constitution, Constitutional Law and Politics 285

authoritarian powers were, therefore, considered contradictory to

the concept of nourishing a living democracy.'
With these experiences in mind, the Awarni League
Government did not want to leave any scope for such exercise of
power by the president. As a result, in the original constitution of
Bangladesh no provision was embodied for any emergency
situations. The decision was bold, praise-worthy and conducive to
the nourishment of living democracy. But sooner than 9 months had
passed provisions for emergency were inserted in the constitution
by the Second Amendment to the constitution of Bangladesh by the
sam ,party which made the constitution.2
<"4mergency Provisions in the Constitution of Bangladesh
Z
Emergency provisions are dealt with part 9A of the
Constitution. The part contains three articles 141A. 141 and
141C.Article 141A says,
"if the president • is satisfied that a grave emergency exists in
which the security or economic life of Bangladesh, or any part
thereof is threatened by war or external aggression or internal
disturbance, he may issue a proclamation of emergency".

Thus the president can declare emergency on three grounds -

war, external aggression or internal disturbance. Two types of
emergency, therefore, can be declared under the constitution of
Bangladesh - emergency of war and emergency of subversion.

L) Vhen can the President declare Emergency?

Article 141A says that the president can declare emergency
whenever he thinks that a grave emergency exists in which the
security or economic life of Bangladesh or any part thereof is
threatened by war, external aggression or internal disturbance.

Article 141A(3) says that a proclamation of emergency may be

declared before the actual occurrence of war or any such aggression

Ahmed. Moudud.Ibid, P. 102

2 Sec further P. 104
286 Emergency Provisions in the Constitution

or disturbance if the President is satisfied that there is imminent

danger thereof..
Again, the proviso of article 141 A(]) says that the proclamation
of emergency shall require for its validity the prior counter
signature of the prime minister. Thus virtually the declaration of
emergency depends on the wish of the prime minister. Whenever
the prime minister advises the president to declare emergency the
president is bound to do so. The declaration of emergency,
therefore, depends on the subjective satisfaction of the executive
and the c2u rt cannot question the justifiability of such satisfaction.

.Y' The Consequences of a Declaration of Emergency

1. A proclamation of emergency may be revoked by a
subsequent proclamation.
2. A proclamation of emergency shall be laid before parliament
and shall cease to operate at the expiration of 120 days unless
before the expiration of that period it has been approved by a
resolution of parliament.
3. If emergency is declared at a time when parliament stands
dissolved or the dissolution of parliament takes place during the
period of 120 days, the proclamation shall cease to operate at the
expiration of 30 days from the date on which parliament first meets
after its re-constitution, unless before the expiration of the said
period of 30 days a resolution approving the proclamation of
emergency has been passed by parliament.
4. As soon as emergency is declared fundamental rights
mentioned in articles 36, 37, 38, 39, 40 and 42 shall automatically
remain suspended and they will remain suspended so long
emergency will be in operation. As a result, the executive may take
any measure against these rights and parliament may make any law
inconsistent with these rights. As soon as emergency is withdrawn
these rights will get their full constitutional status.
5. While a proclamation of emergency is in operation, the
president may by an order declare the suspension of enforcement of
any of the fundamental rights conferred by Part III of the
constitution.
Constitution, Constitutional Law and Politics 287

The Misuse of Emergency Power and its Impact over the

Constitutionalism in Bangladesh.
Firstly, on three grounds emergency can be declared-war
external aggression and internal disturbances. As to first two
grounds there is no objection because both the concepts of'war' and
'external aggression' are specifically defined in international law.
But the problem of misuse of emergency power lies in the third
ground-' internal disturbance'. The word 'internal disturbance' is
nowhere defined. It is a vague term and due to its vagueness the
executive can easily misuse this emergency power. Emergency
may, therefore, be declared even at a peaceful time on the excuse of
internal disturbance though there is no disturbance in reality. In
fact, as had been the fact of emergency declaration in Pakistan, the
ruling elite uses this power as a ready weapon, due to the vagueness
of the term 'internal disturbance,' to crash down the opposition and
anti-government movement. In the constitutional history of
Bangladesh emergency was declared four times.' Every time it was
declared on the ground of internal disturbance. Three times
emergency was declared necessarily for political purpose i.e. to
suppress the anti-government movement and to perpetuate rule. The
emergency declared for the second time after the death of president
Zia was not necessarily for perpetuating rule; it was declared just to
face an unexpected situation which might have occurred following
Zia's death. Like in Bangladesh the Indira Gandhi Government in
India widely abused this emergency power.' To prevent this
widespread misuse of emergency power the 44th Amendment of the
Constitution of India has inserted the word, 'armed rebellion' in
place of 'internal disturbance'. Thus the scope of abuse of
emergency power now has come to a minimum one. Likewise, to
prevent the abuse of this power in Bangladesh such a word should
be inserted in place of the term 'internal disturbance'.

1st emergency was declared on 28th December, 1974.

2nd emergency was declared on 30th May, 1981.
3rd emergency was declared on 26th November, 1987.
4th emergency was declared on 27th November, 1990.
5th emergency was declraed on 11th January, 2006.
A terrible picture of abuse of emergency power in India by Indira Gandhi Government
has been depicted in the book 'Judgment' by Kuldip Nayar which wa ptiblthed by
Vikas Publishing House, New Delhi in 1977.
288 Emergency Provisions in the Constitution

Secondly, under the provision of the Bangladesh Constitution

once an emergency is declared, it can be continued to he in
operation for 4 months (120 days) without the approval of
parliament. And a resolutionfor such an approval is to be passed
by a simple majority. Both these provisions are undemocratic.
Because no mandatory time limit should be given for the
continuance of emergency. It should be specifically provided for
that once emergency is declared by the executive it shall be laid
before parliament as soon as practicable for its approval and if
parliament is not in session an emergency session must be
summoned within a shorter period like 7 days or 10 days etc. And
for such approval the resolution should be passed by two-thirds of
the total number of members of parliament so that the executive
cannot prolong the continuance of emergency. To be mentioned
here that in India once emergency is declared it has to be approved
by a resolution of parliament within one month and such a
resolution has to be passed by a majority of the total membership of
each House and not less than two-thirds of the total number of
members present and voting in each House. Otherwise after one
month emergency will cease to operate. In both the 1956 and 1962
Constitutions of Pakistan there was no mandatory time limit for the
expiry of the proclamation. Under these Constitutions the
proclamation was to be laid before parliament as soon as
practicable2. Under the present Constitution of Pakistan it is to be
laid before parliament within 2 months.

Another important feature of emergency provisions in

democratic countries is that when emergency is declared an special
or emergency session of parliament must be summoned
immediately if it is not in session. During the emergency of the
World War 11 the British Parliament was in session till the war
ended and emergency withdrawn. During the period of emergency
parliament should continue to function so that it can directly
exercise its control over the actions of the executive. Under the
present Constitution of Pakistan joint sitting of parliament has to be
summoned by the president to meet within 30 days of the

2 Article 30 of the Constitution of 1962

Article 191 of the Constitution of 1956
Article 232 of the present Pakistan Constitution.
Constitution, Constitutional Law and ldit 2')

declaration of emergency'. In India there is api - k)\ ion or special

sitting. But in Bangladesh Constitution 110 sLIch pro isbn
inserted.

Thirdly, another interesting point is that it is not indicated in the

Constitution how long emergency will remain in force one,
parliament approves it. It, therefore, means that it' emergency is
once approved by parliament, it can continue in operation for an
indefinite period, In India the provision is that if emergency is once
approved, it shall remain in force not more than 6 months.

Fourthly, it is provided in article 141 [3 that with the

proclamation of emergency 6 fundamental rights (Articles 36, 37,
38, 39, 40 & 42) will automatically be suspended. This is
undemocratic. Because the proclamation of emergency does not
always mean the suspension of fundamental rights; more restriction
instead of suspension may be imposed over them. In German
Constitution there are provisions for 'state of tension' (Article 80a)
and 'state of defence' (Article liSa) which are equal to emergency
Of subversion and ol war respectively. But it is specifically
mentioned in article 19 that in no case may the essence of a basic
right (fundamental rights) be encroached upon. Thus even in
emergency period there is no provision for suspension of rights.
The Constitution of Singapore provides for emergency provision
(Articles 150 and 151) but no power has been given to suspend
fundamental rights'. In India the provision as amended by the 44th
Amendment is that in time of ornergencv of subversion no
fundamental right can be suspended :ind in time of emergency of
war and external aggression only six fundamental rights as
mentioned in Article 19 shall be suspended.

Fifthly, once emergency is declared Article 141C empowers the

President to suspend the enforcement of all fundamental rights. If
the enforcement of a right is suspended, théight itself becomes

Article 232 (7) of the present PakisLan Constitution.

In time of emergency ill parliament can pass preventive detention law and
that law is limited to emcrgenc\ period only. And under that preventive law a dctenue
has been given 3 rights SO that even in emergenc y citizens are not unnecessarily
harassed

19
290 Emergency Provisions in the Constitution

meaningless as like as a car without its engine. Emergency o

subversion was declared four times in Bangladesh and it is the i':ict
that every time the enforcement of all fundamental rights va
declared suspended and they remained suspended for months
together. No democratic principle can justify such a situation. There
are some rights e.g. right to property etc. which are in no way
connected with the emergency of subversion. But still then the
enforcement of all rights was kept suspended. It should, therefore,
be s p ecifically demarcated in the Constitution as to the enforcement
of ,'.tich particular rights would be suspended during the
emerg ency of war and which during the emergency of subversion.

It is worthy of notice that in India through the 44th Amendment

it has been provided in article 359 that even in time of emergency
of war or external aggression the enforcement of rights mentioned
in Articles 20 and 21 i.e. protection in respect of conviction of
offence and protection of life and personal liberty cannot be
suspended.

It is also to be mentioned here that in Britain the Queen has no

inherent power to declare emergency. Two types emergency are
known to the British constitutional system - peace time emergency
and war time emergency. For peace time emergency, there is
Emergency Powers Act of 1920 and of 1964. Under this law the
Queen can declare state of emergency to face any riot or natural
calamity. But if emergency is declared -
i) it must be forthwith communicated to parliament. If
parliament is not in sitting, it must he summoned within 5 clays.

ii) it will remain in force only for one month.

iii) so long emergency is in force, regulations may be made by

Orders-in-Council for securing the essentials of life to the
community. The regulations must he laid before parliament and
expire after 7 days unless a resolution is passed by both Houses
providing for their continuance.
Constitution, Constitutional Law and Politics 291

iv) the writ of habeas corpus will not be suspended and the
Emergency Powers Act expressly prohibits the alteration of any
existing procedure in criminal cases or the conferring of any right to
punish by fine or imprisonment without trial.'

Emergency of war in Britain cannot be declared without the

authority of parliament. Parliament makes laws on the basis of
which emergency may be declared. Only in time of emergency of
war arbitrary arrest and imprisonment by the executive is legalised
by Acts oparliament. During the World War I the Defence of the
Realm Acts of 1914-1935 and during the World War If the
Emergency Powers (Defence) Acts of 1939 & 1940 were passed by
the British parliament. Under these Acts extensive power was given
to the executive for preventive detention. As soon as war ended
these laws themselves also ended respectively. But even in such
grave emergency the writ of habeas corpus was not suspended.
Likewise. in USA the executive cannot declare any emergency
without the authority of law made by the Congress.

From the above discussion it becomes clear that the emergency

provisions were inserted in the Constitution with an express
intention to perpetuate rule and to suppress the opposition. This
draconian law has been a permanent stigma on our good
Constitution made by the same AL government which piloted the
Constitution making. This law is nothing but a necessary weapon
to weaken the political institutions in the country; to neglect the
supremacy of parliament; to hamper building a normal democratic
system. These authoritarian powers are always contradictory to the
concept of nourishing a living democracy. Unlike in other
constitutional system in the world declaration of emergency in
Bangladesh factually means the total negation of fundamental
rights, for during emergency period they turn into a meaningless
reality. After the freedom of India it was Jawharlal Nehrue, who as
Prime Minister for 17 years nurtured the institutions of
parliamentary democracy with his vigilant leadership quality. His
daughter Prime Minister Indira Gandhi, in 20 months of emergency

Rclirencc. Wade and Bradtcy. Constitutional Law. 8th ed. 1970 (London; Longman)
PP. 717-718
292 Emergency Provisions in the Constitution

curbed the very fundamental rights for which her father had fought.
It took another man of great stature. Prime Minister Morarji Desai,
to restore to the Indian Constitution the values and safeguards for
which he, as a young man, had struggled so hard. So that a state of
so-called emergency would not be easily repeated in India to
destroy further the institutions of democracy Article 352(l) of their
Constitution amended to replace 'internal disturbance' with 'armed
rebellion' as possible cause for declaring emergency. To end with
the words of a commentator "our institutions are not strong enough
to shape leaders. At this new rebirth of democracy this nation looks
upon its leaders to create institutions. Special provisions are to be
used with care and discretion, and if we cannot do so l perhaps we
should not have this provision at all")

1 ('houdhury . Nazirn Kaniran. Legislation hi' Ordinance, Ibid. P. 24

Constitution, Constitutional Law and Politics 293

Cl-IA PIIR XVI

PREVENTIVE DETENTION AND THE

SPECIAL POWERS ACT
Preventive Detention
The term 'preventive detention' is used in contradistinction to
the term 'punitive detention. In other words, it may he said that
'detention may he of two types-punitive detention and
preventive detention. Preventive detention means detention of a
person without trial and conviction by a court, but merel y on
suspicion in the minds of the executive authority. "Preventive
detention is an abnormal measure whereby the executive is
authorised to impose restraints upon the liberty of a man who
may not have committed a crime but who, it is apprehended. is
about to commit acts that are prejudicial to public safty etc.
Punitive detention on the other hand, means the detention of a
person only after trial for committing a crime and after his guilt
has been est,lishcd in a competent court of justice. According
to justice Vinaii Bose. preventive detention has three special
features. The first is thatii.etention and not imprisonment:
the second is that it is detention by the executive without trialor
inquiry by a court and the third is that the object is preventive
and not punitive. 2 According to Chief Justice Badrul Haider
Chowdhury, preventive detention means detention the aim of
which is to prevent a person from doing something which is
likely to endanger the public peace or safety or causing public
disorder.3

Distinction between Preventive Detention and

Punitive Detention
The distinction between preventive and punitive detention
has beautifully been described by Mukharjee J. in the following
words:

l3rohi, A. K. Ibid. P. 424

2 Quoted by Pirzada. Sharifuddin, Ibid, P. 191
Cltowdhurv, Badrul I laider. ilie long Ecoes.
294 Preventive Detention Laws in the Constitution

"A person is punitively detained only after a trial for

committing a crime and after his guilt has been established in a
competent court of justice. Preventive detention, on the other
hand, is not a punitive but a precautionary measure. The object is
not to punish a man for having done something but to intercept
him before he does it and to prevent him from doing it. No
offence is proved, nor any charge formulated and the justification
is suspicion or reasonable probability and not criminal conviction
which only can be warranted by legal evidence."

There are following distinctions between preventive

detention and punitive detention;
First, preventive detention is a detention by the executive
authority whereas punitive detention is a detention by a court.,.

Scond, the object of punitive detention is to punish a man

for having committed a crime. The object of preventive
detention, on the other hand. is not to punish anyone for any
wrong done by him but to prevent him from doing any injuriops
activities in future by him.

Fhird, preventive detention is a precautionary measure

adopted by the executive in time of emergency for the greater
interest of the nation and state whereas punitive detention is an
ordinary measure.

/( Fourth, in case of punitive detention the person under

detention has committed a crime whereas in case of preventive
detention the person under detention has not committed any
crime. Punitive detention, therefore, comes after the illegal act is
actually committed but preventive detention has reference to
apprehension of wrong doing.

I Quoted by Pirzada. Shariluddin. Ibid, P.191

Constitution, Cons itutional Law and Politics 295

asof
Fifth, in cas e ot'
punitive detention specific charge is brought
against the detehu and through a formal judicial procedure the
charge has to he proved by legal evidences. But in case of
preventive detention no specific charge is formulated, no offence
is proved; nor is any evidence present and the justification of
such detention is suspicions or reasonable probability of the
impending corn i sion^of the prejudicia acts. 5'
-
Need For Preventive Detentior-
From the above discussion it is clear/ that preventive
detention is an abnormal measure of curtailing personal liberty
of a person. A question is then necessarily obvious- what is the
justification or philosophy behind preventive detention?

'The philosophy lying behind the preventive detention is the

interest and security of the state all National security
and interest are more important than the personal liberty of
citizens, for the enjoyment of personal liberty itself is dependent
oil safe security of the state,(/This is why in times of grave
emergenc y threatening to the security of the state preventive
detention is authorised by law in all democratic countries
including England and USA. Justifying the measure Lord
Atkinson in R V. Halliday said:
.......Where preventive justice is put in force some
sufferings and inconveniences may be caused to the suspected
persons. This is inevitable. But the suffering is ......inflicted for
something much more important than his liberty or convenience,
namely for securing the public safety and the defence of the
realm.'
..However precious the personal liberty of the subject
may be, there is something for which it may well he, to some
extent, sacrificed by legal enactment, namely national success in
the war, or escape from national plunder or enslavement .... '2
In the same case Lord Finlay said-
"Any preventive measure even if they involve some restraint
or hardship upon individuals, do not partake in any way of the

I Quoted by. Brohi. A. Ibid, P. 424

2 Quoted by. Patwar. A.B.M. Maflzul Islam. LibertnI the People, (1)haka
Institute of I lurnan Rights and legal Affairs, 1987). P. 2
296 Preventive Detention Laws in the Constitution

nature of punishment, but are taken by way of precaution to

prevent mischief to the state."3
As already mentioned in the earlier chapter, all international
and regional documents of human rights recognise and make
provision for derogation of rights in case of emergency and of
national crisis. During the First and the Second World War the
British Government was given extensive power by parliament to
pass order for preventive detention. The US Congress has also
given the executive power to make preventive detention. But this
power can be exercised only in times of grave emergency like
war or external aggression. Preventive detention is recognised as
a war-time measure and not a peace-time measure. In times of
peace preventive detention is not at all known in democratic
countries.

History of Preventive Detention Law in the

Sub-Continent and Bangladesh
Preventive detention iii times of' peace is repugnant to
civilized society. Nevertheless preventive detention was first
introduced in this Sub-Continent in 1818 by the Bengal State
Prisoners Regulation Ill of 1818. tinder this Regulation the
Governor-General was authorised to order detention and for this
purpose he was invested with wide discretion; the jurisdiction of
a court of law to question the legality was barred. Under this
Regulation detention order could be made only on grounds
connected with the maintenance of public order and a person
could be detained without trial for an unlimited period. Later on
under the authority of the Government of India Act, 1919 several
Emergency Power Ordinances were promulgated. Also the
Anarchical and Revolutionary Crimes Act, 1919 popularly
known as the Rowaltt Act was passed. All these dealt with
preventive detention in peace time. Later on the Government of
India. Act, 1935 also provided for scope of preventive detention
and under this Act the Defence of India Ordinance was
promulgated. Later on it was transformed into the Defence of
India Act, 1939. This Act continued during the period of the

Quoted by. Munirn. F.K.M.A. Ibid, I'. 107

Constitution. Constitutional Law and Politics 297

World War 11 and was in force till 6 months after the war ended
in 1945.

Besides the two instruments i.e. the Defence of India Act,

1915 and of 1939 of First and Second World War dealing with
preventive detention in war time several ordinances dealing with
preventive detention were promulgated both under the
Government of India Act of 1919 and of 1935. Needless to say
that these preventive laws in peace time which are alien to the
British system. were made and used by the British rulers with a
view to perpetuating their colonial interests and rule. "Hundreds
and thousands of Indians both Muslims and Hindus and almost
all their leaders had suffered imprisonment or regours of these
laws in some way or other. Particularly a detention without trial
was considered by all during the Indian Independence movement
as a crime against humanity."' But it was the fact though it was
Lill fortunate that after partition and independence both Pakistan
and India retained these laws in peace time. The Indian
constitution in article 22 empowers the parliament to legislate on
preventive detention subject to limitation laid down by article
22.

Before the Pakistan Constitution of 1956 could be framed,

several Ordinances and Acts dealing with preventive detention
e.g. Pakistan Public Safety Ordinance. 1949, Pakistan Public
Safety (Amendment) Act, 1950, the Pakistan Public Stately
Ordinance, 1 952 and lastly the Security, of Pakistan Act, 1952
were made under the authority of the Government of India Act,
1935. Later on the Constitution of Pakistan of 1956 and of 1962
empowered and also of 1973 empowers parliament of Pakistan
to enact preventive detention laws.

Immediately after independence the Constitution of

Bangladesh was adopted on 4th November, 1972 and it came
into force on 16th December. 1972. As mentioned in the
preceding chapter, taking the bitter experience of arbitrary arrest
and detention under various preventive laws during the 23 year
history of Pakistan into serious consideration the Constitution

Ahmed, Moudud. Bangladesh Era of Sheikh A lu/i/mr Rahinan., ibid. I. 100

298 Preventive Detention Laws in the Constitution

makers did not want to leave any scope for preventive detention.
As a result, in the original Constitution of Bangladesh no
provision was embodied allowing preventive detention. But only
after 9 months of its life by the Constitution (Second
Amendment) Act Article 33 dealing with safeguards as to arrest
or detention was substituted in line with Article 22 of the Indian
Constitution so as to allow for laws to be made on preventive
detention. Under the authority of this amended provision of
Article 33 the parliament in February, 1974 enacted the most
hated and democracy destroying draconian law - the Special
Powers Act. 1974 providing tbr preventive detention for all
times.

The Power of Preventive Detention caries with

it the Risk of Abuse of Power
It is sometimes said that the power of preventive detention
like that of emerg ency carries with it the risk of abuse of power.
This is true particularly in most developing countries where
these special laws like emergency and preventive detention are
used as necessary and ready weapons to crash down the
opposition and to perpetuate rule rather than to meet real
emergencies. The abuse of preventive detention law particularly
in Bangladesh, India and Pakistan-three neighbouring countries
is well enough to conclude that this power carries with it the risk
of abuse of power. 32 years have passed since we achieved our
independence. Since then there occurred no situation of war or
external aggression; nor any civil war or internal disturbance
threatening the security of the state has ever occurred. But this
Special Powers Act, 1974 has, since its enactment, been used by
every government as a brutal weapon to suppress anti-
government movement, sometimes democratic movement and to
perpetuate rule. Hundreds and thousands of political leaders and
workers have been and are being detained under this law
sometimes, for years together without any trial. The following
statistics will necessarily give the idea that the democratic
governments are in the competition to abuse of this law.
Constitution, Constitutional Law and Politics 299

Year basis number of detenus under the Special Powers Act,

1974
Year Total Number of Number of Released Persons ilirough
Detcnus Writ of Habeas Corpus
1974 513 13
1975 1114 31
1976 1498 46
1977 1057 25
f978 753
1979 96)) 3)
- 1980 710 41
1981 1759 29
1982 1548 54
1983 872 44
1984 643 36 -
1985 882 48
1986 2194______ 94
1987 4593 327
1988 1907 741
1989 4482 $71
- 1990 4615 i099
1991 5302 1710
1992 6497 1594
1993 3669 1066
1994 2968 630
1995 4173 1705
1996 5413 3376
1997 2539 1393
tipto July--
Source Ministry of I lome AIThirs.
To tell the truth. I had to undergo various troubles and expenses to get this small
statistics from the Ministry of I lome Affairs. Thanks to Mr. Raliqul Islam. Minister of
I lome Affiuirs who lastly allowed my application in spite of strong protest from his
personal secretary. Still I was not given the full statistics. I wanted to get the number
of released persons through the governments own initiative and through the reports of
the Advisory Board and also the total number of detenu held in prison throughout the
country till June., 1997.
300 Preventive Detention Laws in the Constitution

Of course, it is to he mentioned that power of preventive

detention does not necessarily carry with it the risk of abuse of
power if, the law dealing with the preventive detention or the
Constitution allowing enactment of preventive detention law
provides for stern safeguards against its abuse. For example, if it
is specifically mentioned in the Constitution or law that
preventive detention lavy cannot be used by the government
except in times of emer gency of war or external aggression and
that the detenu ' ill have the right to appl y for judicial review ol
the grounds of his detention, then it would be ditTcu1t to say that
preventive detention power necessarily carries with it the risk of
abuse of power. For instance, like the Special Powers Act in
Bangladesh, there i, a permanent preventive detention law in
USA namely the fnternal Security Act (Popularly Known as Mc
Carron Act) 1950. The US Government has little scope to abuse
the power given by this law. Because the safeguards provided for
in it do not allow so. The safeguards of this law are following-
!. This law call used only in war time emergency.
2. Only the Attorney General is empowered to issue warrant
for the arrest of an y person whom he believes to be dangerous.
3. The arrested person is brought before a preliminary
hearing officer who issues a detention order if he finds that there
is a probable cause for detention.
4. Against the order of detention the detenu has right to
appear to the Detention Review Board and this Board has power

i) to confirm the detention order; or

ii) to modify the detention order ; or
iii) to nullify the detention order; or
iv) to indemnify the detention order.
5. Form the decision of the Board the detenu may, if he is
still aggrieved, have a judicial review by way of appeal to the
Federal Court of Appeal.'
Thus even in war time emergency so many stern safeguards
have been provided for against the abuse of power by the

Pirzada. Sharihiddin. IbM, P. 193

Constitution. Constitutional Law and Politics 301

government. This is because right to freedom and personal

liberty is the core of all rights. When the personal liberty of a
person is taken away by arresting him, he cannot enjoy any other
right except right to life; all rights, however fundamental or
basic they ma y be, become meaningless to him. So there should
be strong and effective safeguards against the abuse of
preventive detention law so that personal liberty of citizens is
not unnecessarily harassed.

In Britain
Britain there is no permanent law allowing preventive
detention. It' any emergency of war like that of First and Second
World War occurs, it is the British Parliament which will make
necessary law allowing detention.

Law of Preventive Detention in Bangladesh And

Constitutional Safeguards for it
Article 33 of our Constitution deals with the rights of an
arrested person. in other words, safeguards as to arrest and
detention. ]his article as it stands now, after the Constitution
(Second Amendment) Act has re-enacted it, has two parts:
a) the first part consisting of sub-Articles (I) and (2) deals
with the Constitutional rights of a person arrested tinder ordinary
law;' and
b) the second part consisting of sub-Articles (3), (4), (5) &
(6) deals with the laws relating to preventive detention and
rights or constitutional safeguards of a person arrested under
preventive detention law.

Article 33 confers [our constitutional rights or safeguards upon a person arrested

under ordinary la . The y are
I) lie cannot he detained in custod y without being informed, as soon as niaN he.
or the ground o I' his arrest.
ii) lie shall ha c Lite right to consult and to be represented by a law yer of his
own choice.
iii) lie has the ritdtt to he produced ietire the nearest magistre ithin 24 hours
ot'his arrest: and
iv) He cannot he detained in custody beyond the period ol' 2'1 hours without the
authority of' the magistrate.
302 Preventive Detention Laws in the Constitution

The second part of Article 33 provides for 3 Constitutional

safeguards for a detention under preventive detention law:
I. Review by an Advisory Board.
2. Right to communication of grounds of detention; and
3. Right of representation against the order of detention.

1. Review by Advisory Board.

An arrested person under the preventive detention law shall
have the right, if the government wants to detain him more than
6 months, to be produced before the Advisory Board which shall
consist of 3 members - two from acting judges of the Supreme
Court or qualified to be judges and one from senior civil
servants. A person cannot be detained under the preventive
detention law more than 6 months except tinder the authority of
the Advisory Board. If the Board before the conclusion of the
said period of 6 months reports that in its opinion there is
sufficient cause for such detention only then government can
detain him more than 6 months.

2. Right to Communication of Grounds of Detention.

Article 33(5) says that the detaining authority must
communicate 'as soon as may be" to the detenu the grounds on
which the detention order has been made.

3. Right to Representation against the Orders of

Detention
Article 33(5) again provides that the detaining authority must
afford the Menu the earliest opportunity of making a
representation against his detention order.
It is important to mention here that the third right i.e. right to
make an effective representation depends on the second right i.e.
right to communication of grounds. Because without getting

The word as soon as may he is not defined in the constitution. It means that the
grounds must he communicated to the detenu within a reasonable lime. Section
8(2) of the Special Possers Act provides that grounds must be communicated
within 15 days tloni the date oldetenlion order.
Constitution, Constitutional Law and Politics 303

grounds i.e. information and particulars sufficient to make an

J'fcctive representation against the detention order it is not
possible for the detenu to make a representation. But the proviso
of Article 33(5) provides that the detaining authority may refuse
to disclose facts which such authority considers to be against the
public interest to disclose. Here lies the crux of the problem.
Because 'grounds are reasons or conclusions drawn by the
authorities from the facts or particulars on which the detention
order is made. 2 If all the relevant facts and particulars of the
grounds, therefore, are not supplied to the detenu, it is not at all
possible for him to make an effective representation and the
right to make a representation becomes illusory. It is, therefore,
for this proviso of Article 33(5) that the second and third
Constitutional rights of a detenu have become quite meaningless.
Because only communication of grounds without facts and
particulars of the detention order does not enable the detenu to
make a representation. To give an example, suppose the
following communication is sent to a detcnu immediately after
he has been taken into custody:
"You are being detained under the Special Powers Act, 1974.
Because the government has confidential information that you are
doing something in various meetings and otherwise which are
prejudicial to public order."

This communication discloses the ground on which the

detention order is based. But the 'confidential information' here
that is kept by the government is the real base or fact of the
ground without which the detenu will not be in a position to
make representation. To enable him to make a representation
which might give him relief he must he told some details of his
activities e.g. what was the nature of the meetings he was
participating? when and how were these meetings held?, what
type of people participated it? -particulars and documents
relating to all these amount to the 'facts and particulars' of the
grounds without the disclosure of which a detenu cannot make
an effective representation.

2 ShukLa. V. N. ibid. 1'.133

304 Preventive Detention Laws in the Constitution

So it is clear that out of three Constitutional safeguards two

are ineffective and the detenu has only one right to enjoy-right to
be produced in person before the Advisory Board and the
question of that right comes after the expiration of 6 months)

This Advisory Board is not a judicial body; it does not

follow strict judicial procedure; it is a quasi-judicial body. The
detenu cannot appoint a lawyer before it; it neither works as a
court: nor does it try the detcnu; it is in fact in the nature of a
body charged with the responsibility of advising the executive by
giving its opinion in its report. Though the report of the body is
binding on the executive it cannot be said, considering the
procedure of the function of the Board, that the opinion of it will
be independent and may not come under the influence of the
executive.

It is important to mention here that in India to make the

composition of the Advisory Board independent the 44th
Amendment Act brought a change. Now the Advisory Board' in
India is chaired by a serving judge of the appropriate 1-ligh Court
and the other two members must be serving or retired judges of
any Iligh Court. This change in the composition of the Advisory
Board was made with a view to ensuring that the chairman and
members of the Board shall be independent and may not come
under the influence of the executive, it has, therefore, ensured
the fair consideration of the representation made by the detenu.

Section 10 of the Special Powers Act. 1974, of course, provides that the
government shall within 120 day s from the date of detention, place before the
Advisory Board the grounds on which the order has been made and the
representation. if any, made by the detenu. And the Board has to submit its report
to the government within 170 days from the date of the detention order.
Constitution. Constitutional Law and Politics 305

Demerits of the Preventive Detention Law and its

Impact over Constitutionalism in Bangladesh
First both in Pakistan and Indian Constitution the initial
period of detention is 3 months. Bitt in Bangladesh Constitution
the initial period is 6 months. Nowhere in the world such a lone
period Jl flitial dCtL'nhiofl is Iound.

Second, there should be a lixed maximum period ol

detention. In Pakistan under Article 10(7) a person cannot he
detained more than 8 months in a 'car. In India the niaximum
period is 2 scars. But neither the Constitution of Bangladesh nor
the Special l >'.o\ ers Act specifies any fixed period. It means that
a person can he detained for an indefinite period once the
Advisory Board opines that there exists sufficient cause Ibr such
detention.

Third. in democratically developed countries like USA it is

specifically mentioned that onl y in time of emergency preventive
detention law would be applied. l3ut in our Constitution no such
specification is provided br. As a result, preventive detention
law has been an integral part Of our Constitution and every
government is Lisin g this law as a permanent weapon to crash
down opposition and throttle personal liberty guaranteed by the
constitution.

The statistics shows that every year a lar ge number of'

political workers and leaders are detained without trial under the
Special Powers Act. This law has popularly been titled as 'Black
Law' or 'the Draconian Law'. Because, first, a detenu under this
law has not been given any right, by appointing a lawyer, to
know from a judicial body 'why has he been detained'? Second,
this is the law by which the government can arrest and detain
any person any time it wishes. Third, it is the law by which the
government can. if it wishes, detain a person for an indefinite
period. And f'ourth, this is the law which is factually negating all
the avowed commitment and spirit of the preamble to the
Constitution. particularly, the fandamental rights as guaranteed

20
306 Preventive Detention Laws in the Constitution

in the Constitution. As mentioned earlier, once a person is

detained illegally under this law, he finds his all fundamental
rights except the right to life strangulated in a pincer-like
trapping.

The Special Powers Act was adopted essentially keeping, line

with the Maintenance of Indian Security Act (MISA). 1971 and
the Last Pakistan Public Safety Act. 1958. But the provisions of
ttc Special Powers Act were made more draconian than those of
these two laws. It is also evident from the above discussion that
the Special Powers Act was made absolutely with a savage-dog-
motive to put attack on the enjoyment of personal liberty, in a
sense, to put attack on the development of constitutionalism in
Bangladesh.

To quote JLlstice Patanjali Sastri, "this is a sinister-looking

fiature. so strangely out of place in a democratic Constitution,
which invest personal liberty with sacrosanctity of a fundamental
ri g ht, and so incompatible with the promises of its preamble.....
He has also described preventive detention law as a serious
invasion over personal libCrt y .2 Justice B.K. Mukharjea also
says. "no country iii the word I am aware of has made this
(preventive detention law) as integral part of their constitution as
has been done in India. This is undoubtedly unfortunate .....
which cannot but be regarded as a most unwholesome
encroachment upon the liberties of the people."3

It is important to mention here that one of the demands of the

three alliances during the 1990 movement for democracy was the
repeal of the Special Powers Act, 1974. It is said that the last act
of President H. M. Ershad was signing an ordinance repealing
the Special Powers Act but it was not gazetted, and so, had no
validity. In 1991 acting President Shahabuddin Ahmed deleted
certain provisions of the Act, but it seemed that the political

A.K. Gopalan V. State qf Madras AIR 1950 SC 27

2 Ram Krishna l3Iiardwa',/ V. State oJ Delhi
AK. Ciopalan V. State of Madres
Constitution. Constitutional Law and Politics 307

leaders he consulted, wanted to keep the main provisions. The

BNP leader coming to power quite forgot her pre-election
commitment in this regard and she emphatically began to say
that without this law the country could not be administered.
Likewise, before coming to power Sheikh Hasina, Leader of-the
Awami Lea g ue in the 7th parliament gave all
rn mitment to reped this la\\ But co ii ing to power she had
pul cc! her tone quite in opposite direction by saying-
Hicre is no question of repealing the Special Powers Act.
This law is a must to run the government and to suporess
terroui sill.'

Is there any justification truly behind SLICh logic of' Sheikh

Ilasina and Khaleda Zia? The answer comes to my mind is
'absolutely No': all these are lame excuses, for very few instances
call lound where the I ugh Court Division in its hundreds and
thousands of habeas corpus cases opined or ruled that there is
justification behind the detention of person arrested under the
Special Powers Act, 1974. Every government is using this law
only and only as a political weapul and as a result it has been a
all-time pincer-like trapping to the enjo yment of personal liberty
in the country which is onl y able enough to destroy democratic
institutions.

Judicial Remedies of a Detenu in the Constitution and the

Bulwark of the Supreme Court against Illegal Detention
In England enactments for preventive detention were made
during the First and Second World Wars and they were known
as respectively the Defence of Realm Act and the Emergency
Powers (Defence) Act. The full implication and all aspects of the
law were considered in the famous case of Liveridge V .
A nderson by the I-louse of Lords. Regulation 1 813 framed under
the Emergency Powers (Defence) Act provided:
"If the Secretary of State has reasonable cause to believe any
person to be of hostile origin or associations or to have been
recently concerned in acts prejudicial to the public saléty or the
defence of the realm or in preparation or instigation of such acts
and that by reason thereof it is necessary to exercise control ove
.308 Preventive Detention Lass in the Constitution

him, he may make on order against that person directing that he

he detained" 1

The decision of the case depended on the interpretation of

the expression. "If the Secretary of State has reasonable cause to
believe'. Whether this expression was to be construed as
meaning "if there is in fact reasonable cause for believing" or it
should be construed to mean" if the Secretary of State thinks that
he has reasonable cause to believe?" lithe fbrmer construction
was accepted. the Secretary of State must have objective basis
for his belief and the court could examine whether there were
materials on the basis of which a reasonable man could have
formed the belief, but if the latter construction was accepted, the
belief of the Secretary was merely subjective and was not open
to scrutiny by the court.

The case was heard by 5 Law Lords. Four of the Lords took
the view that the belief of the Secretary was subjective and not
open to the scrutiny of the court. Lord Atkin alone took contrary
view. In his dissenting judgment Lord Atkin said that the term
'reasonable cause' as a condition for any act or belief means and
indicates an existing something the having of which call
ascertained. He said, for example. 'if A has a broken ankle' does
not and cannot mean "If A thinks that he has a broken ankle."2
He specifically said that 'reasonable cause' for an action or a
belief is just as much as positive fact capable of determination
by a third party, as is a broken ankle or a legal right. What he,
therefore, indicated is that in question of preventive detention
the executive should not be left with its subjective satisfaction.
As there is the term 'reasonable cause' the court should have
power to exercise its objective satisfaction to see if the detention
is a justified one or not. HIS famous speech was as follows:
'In this country amidst the clash of arms, the laws are not
silent. They may he changed, but they speak the same language in

Quoted h. Chowdhury. Badrtit I taidar. The Long Echoes, (Dhaka: 1990). 11.4
2 Quoted h. Chowdhur'.. Badrul I hider. lb/cl. P. 5
Constitution. Constitutional Law and Politics 309

war as in peace. It has always been one of the pillars of freedom,

one of the principles of liberty for which on recent authority we
are now fighting, that the judges are no respecters of persons and
stand between the subject and any attempted encroachment of his
libert y b y the executive, alert to see that an y coercive action is
justified in law.''

This dissenting judgment of Lord Atkin became a milestone

in the history of protection of personal liberty of people. C. K.
Allen wrote to Lord Atkinson supporting his dissenting
judgment:
"You alone among the .j udgcs have raised your voice against it
gross abuse of power. Such events in the wilderness have strong
and long echoes"
Lord Gard i nar who was then at the Bar wrote:
"I think that histor y has taken the view that in Liverskige V..
.1nclersen the majority were wrong and Lord Atkin right."

Though ii; question of preventive detention the 'subjective

satisfaction' of the detaining authority was upheld in the
LIV L'r,vui,ge case forty years later the same House of Lords finally
ruled in favour of Lord Alkin's dissenting view i.e. objective
satisfitction describing the majorit y view in Lirersiefge case as
"beyond recall" and saying that "its ghost need no longer haunt
the law."

The doctrine of 'subjective satisf"action 2 of detaining

authority formulated in the majority view in the Liwr,iJge case

Quoted b y . Chowdhurv. Badrul 1 laidcr. /1,0/. I'. 8

Doctrine of Satisfaction In constitutional jurisprudence this doctrine has Iwo
dimensions--Subjective satisfaction and Objective satisfaction. When the legal
basis of an action or decision taken by an authority or person is the sole personal
satisfaction of that authorit y or person and no other authorit y or bod y has an
Jurisdiction to examine the reasonabilit y of the satisfaction or to question whether
such satisfaction has any foundation on facts. it is called subjective satistaction.
For example. declaration of emergency under Article 93 of the Constitution of
Bangladesh depends on the subjective satislhction of the President: no court can
examine the usU cation of such declaration or promulgation. On the other hand.
when the legal basis of an action or decision by an authority or body is
determinable by any third party or court, it is called objective satisfaction. For
310 Preventive Detention Laws in the Constitution

had a great impact on the interpretation of preventive detention

laws in the Sub-Continent. In British India when preventive
detention power was given under the Defence of India Act, 1939
the Privy Council uphold, following the Liversidge case
subjective satisfaction of detaining authority) After partition and
independence the Indian Supreme Court began to follow the doctrine
cf subjective satisfitel ion giving the CXCCLIIIVC authority unfettered
power of preventive detention.

In Pakistan the z2host of Lbersi(I e haunted the Courts for

quite some time but had quickly been able to depart from it and
to come forward to uphold objective satisfaction for the
protection of the iberty of people. 'The Pakistan Supreme Court
in .1/ian's ease pronounced its landmark judgment:
It is too late in the day to rely, as the Iligh Court has (lone,
on the dictum in the English case of tivcrsidge for the purpose of'
irresting the detaining authority with complete power to he the
judge of its own satisfaction .....power is expressl y given by
Article 98 to the Supreme Court to prove into the exercise of
peblic oower by the executive authorities, howhighsoever, to
decide whether the y have acted with lawful authorit y . [he judicial
power is reduced to a nullity if laws are so worded or interpreted
that the executive authorities may make what statutory rules they
please there under and may LISC this freedom to make themselves
the final judges of their own 'satisfaction for imposing restraints
on the enjoyment of the fundamental rights of citizens.'2

In Bangladesh the Supreme Court from the very beginning

began to follow the doctrine of objective satisfaction. Before the
Special Powers Act was enacted the government resorted to

example, ir a person is detained in our county under any law the subjective
satisfaction of the detaining authority is not enough: our court can examine the
reasonability of such detention.
ulcer Sing/i V. Emperor AIR 1941 All 321
Probhavnkar Kethee Tare & others V. Emperor AIR 1943. Nagpur 26.
Kwnala Kant,-Lad V. Emperor AIR 1944 Patna 354
Quoted 1w, Patwari. A.B.M. Mafizul Islam, LihertvnJthe People, Ibid. P.104
'mini/k Ghuiam li/aol V Government of East Pakistan 19 DI-R(SC) 403.
Constitution, Constitutional Law and Politics 311

Presidents Order 50(P.O.50 of 1972). The first reported case on

preventive detention in Bangladesh is that of Habihur 1?alnnan
V. Bangladesh.' Habibur Rahrnan was arrested under section 54
Cr. P.0 read with P.0.50 of 1972. On 3.9.73 a detention order
ft'r 30 d7vs was served aeainst him under section 41 of the
Public S e af ty Ordinance, 1958. 2 The detention was challenged
by way of writ of habeas corpus. The court hold that ila person
is arrested by police oil suspicion or he is ordered to
be detained on the satisfaction of the detaining authority, the
materials which led the police to entertain reasonable suspicion
against him or the materials upon which the detaining authority
was satisfied regarding his involvement in any prejudicial act
must be placed before the court to justify that the suspicion
entertained b y the police was reasonable or that the satisfaction
on the part of the detaining authority was reasonable. If the
action of the police or of the detaining authority is challenged as
malafide, the non-existence of reasonable suspicion on the part
of the police or of reasonable satisfaction on the part of the
detaining authority \vOLIld he sufficient to prove that the order of -
detention is inalafide and there for, illegal. The Appellate
Division observed-
"We have accordingly no doubt that the framers of the
Constitution intended to empower the II igh Court Division to pass
appropriate order in the case of illegal or improper deprivation of
liberty of person and the power to do so is not at all fettered
because of the absence of nomenclature of the nature of writ in
the Constitution . ......... Under Part Ill of the Constitution, certain
fundamental rights have been guaranteed. Clause I of Article 44

26 DIR 201
It is important to mention here that all Constitutional violation in
respect or personal libert y of the citizens had been done by the then government in
this ease. The Constitution of Bangladesh came into irce on I 6th December,
1972. There was no provision in the Constitution providing lbr preventive
detention. Iheretore the Public Safety Ordinance. 1958 had no legality in
Bangladesh. Sections 17 & 41 of this Public SaIty Ordinance. 1958 being
provisions of preventive detention those were uliravires tinder Article 26 of the
Constitution as those were inconsistent with fundamental rights under Article 33
of the Constitution. So the action (detention oil under the Public Safety
ordinance. 1958) under an unconstitutional law was wholly without lawful
authority.
3 12 Preventive Detention Laws in the Constitution

which also occurs under Part Ill lays down that the right to move
the Supreme Court in accordance with clause I of Article 102 for
the enforcement of the rights conferred by this pall, is guaranteed.
It is, therefore, evident that the enforcement of the fundamental
rights and this remedial right is itself niade a fundamental right by
bei rig mci tided in pall Ill of the Constitution. The Supreme Court
is thus constituted, b y the Constitution. the protector and
guarantor of fundamental rights and so long as the fundamental
rights specified under part Ill remain in force, it is the
Constitutional responsibility of the Supreme Court to protect them
when the right conferred under clause I of Article 44 of the
Constitution is invoked".'

In another writ of Molism Shunt V. Sluic' it is found that

Shahjahan. a young boy of 18 was arrested oil 8.1 2.73 by
Armed Personnel of Dhaka Cantonment, Artiller y Head
Quarters. He was taken to Ramna Police Station and a G.D.
entry was made showing his arrest under section 54 Cr. P.C.
Soon thereafter, the officer-in-charge of Ramna P.S. was asked
by the Rakkhi Bahini authority to hand over Shahjahan to the
Head Quarter of the Rakkhi Bahini. Shahjahan was handed over
to the Rakkhi Bahini. It was alleged in this case by Mohsin
Sharif, the brother of' Shahjahan that Shahjahan had been
inhumanly tortured by Rakkhi Bahini and he was last seen by
his brother at the Head Quarter of' the Rakkhi Bahini on
02.01.74. Since then there was no trace of Shah jahan. Mohsin
Sharif then filed a Habeas Corpus writ petition br the
production of his brother before the court. The High Court
Division ordered that Shahjahan should he produced before it.
But the Rakkhi Bahini could not produce Shahja]ian before the
court; actually he was killed by the Rakkhi Bahini. The court
directed that all Commission should be set up by the
government to ascertain the true state of things as to the
whereabouts of Shahjahan. But it was not done. To quote Justice
Badrul Haider Chowdhury. "the court found that Rakkhi Bahini
was functioning illegally. Shahjahan was never found again; just

Ref. Aril' A. F. Hassan, 11w Judiciary Bulwark(gown Illegal Detention, (A

paper read in the Seminar. 'Rights in Search of Remedies'.)
Constitution. Constitutional Law and Politics 313

vanished in the air" This was the blackest chapter in the history
of preventive detention law in Bangladesh.

In AJalaii itlohan V Government (writ petition No. 879 of

1977) Madan Mohan was arrested on 5.7.77. The I-lCD declared
detention ilIcaI and ordered his release. Madan Mohan \\ as
released but at thejail gate he was a gain arrested by serving a
flesh order of detention This was done just to liiistrate the High
Court Division's order.

In Far:ana /laq V . Bangladesh (writ petition No. 271 of 1990)'

Sanaul I laq Niru was arrested and detained first oil under the
Special l'owers Act. lbs detention was challenged in writ petition no
187 of 1988 and the Court declared the detention illegal and directed
the release of dctenu on 10.5.1988. But NirLi was not released.
Another fresh order of detention was served against him 011 29.9.1988.
Niru was not placed before the Advisory Board within the statutory
period of 120 dii) 5. The High Court Division again declared the
detention illegal and directed his release. 13u1 Niru was not released:
rather another tresil detention order (third time) was served and ii was
ehal lented b y another v nt petition (writ petition no. 989 of 989).
Again the court declared the detention illegal and directed the detenus
release. But even this time Niru was not released: rather another fresh
detention order was served. The matter came up before a division
Bench of the I lich Court Division in writ petition no 270 of 1990. The
Court said:

"[he least coo be said is that the detaining authorii is pa inc little
regard to the order of the court. it is unlortunatc that the authority hich
is obligated under Article 32 of the Constitution to protect the I bert) ol
the citizens and Further required under Article 112 thereof to act in aid of
the courts order should flout the laws by resorting to authoritarian acts
we are satisfied that the detention is illegal and the detenu shalt he set at
I ihcrtv lorthsvith.

43 DI.R 501
3 14 Preventive Detention Laws in the Constitution

This time, of course, Niru was released. Thus purely for political
Purposes every government is resorting to, as the statistics says,
thousands of illegal detention rinder the Special Powers Act violating
the constitutional mandates as enshrined in Article 32 of the
Constitution and the judiciary is perlhrming its bulwark against this
illegal detention. The government is. ilieretore, unnecessarily killing
in,Or portion Of the Supreme Courts valuable time giving it overload
in cases and causing a huge pendency in genuine litigations.
Constitution, Constitutional Law and Politics 315

CIIAI'TIiR XVII

WOMEN MEMBERS OF PARLIAMENT

General Women Members and Special Women Members

'.,!ie to c c': isting provisions of the Constitution OF
dcsh woincti mmhcrs may be of two types--gencral women
nenibers and special women members. Those who according to
Article 65(2) of the Constitution are elected form single territorial
constituencies by direct election are called general omen members
o parliament. And those who according to Article 65(3) of the
Constitution as amended by 14th Amendment Act are elected
indirectly in reserved seats for women by the directly elected
members of parliament may he called as special omen members
of parliament.

Background of the Women Members' Reserved seats

Please see tenth Amendment (P.160)

Mode of Election in Reserved Seats

Article 65(3) of the Constitution provides that in 45 reserved
seals women niembers shall he elected accorditig to law b the
niemhcrs of parliament
III
with Iil\V on 111c l)SiS o
procedure of pr poriionil epresentatloll in the Purhiatiient through
single rransfcrihlc vote. Thus reserved seals are allocated to parties
in proportion to their overall share of the seats. Oil 29,
2004 the parliament enacted the Jatiya Sangsad (Reserved Seats for
Women) Election Act 2004 for holding indirect election by the 300
directly elected MPs. According to the new law, 45 reserved seats
for Women will be allotcd among the political parties and alliances
on the basis of thier proportional representation in the parliament.
On the basis of the calculation of so-called proportion the ruling
party I3NP was to get 29, its coalition partner Jamaat 3, Awami
League 9 and Jatiya Party 2. However, the AL refrained from giving
candidate for reserved seats. As a result. 9 seats for AL have again
been allocated to other Parties proportionately. Women groups
316 Women Members in Parliament

vehcmcrlt]\ ventilated their grievances against the I P 5 Amendment to

the Consitution. They were eventually forced to go to the High Court
by filing writ against the 14 11, Amendment Act and Jatiya Sangsad
(Reserved Seats for Women) Election Act 2004 challenging the
constitutional provision foe indirect election to the sereved seats for
\VU111Cfl. I lovcvci-, LIIC court rejected the pctition and upheld the 14'

Amendment to the Constitution, providing for 45 seats for women in

the parliament and approving the law for their indirect election.

Status of Women Member elected in the Reserved Seats

Though the 45 women members in the reserved seats are not
elected directly b y the people, they enjoy the same status, from legal
point of VCVt. as directly elected MPs do. They enjoy the same
opportunities and privileges and have the same rights and standing
in all kinds of functions in the parliament as general MPs in the
House do and have. However, from the view point of representation
they have weaker status than that of directly elected members. This
is because these 45 women do not really represent any portion of
population except the party proportional stren g th. Though they have
national georaphical constituenc y they have no link with it, for the
people of that constituency do not elect theni and, therefore, the
constituencies they represent are fictitious only. They also cannot
he said to represent women in general, as the women of the coLintry
have no role in their election. Again, since these women members
of parliament have not gone through a competitive election process,
they are taken less seriously by their directly elected colleagues who
actually consider them more as a 'vote bank'.

Justification for Women Members Reserved Seats

The Constitution of the country recognises that all citizens are
equal before law and undertakes to give them equal opportunities.
However, it is also accepted that in reality all sections of societ y are
not equal and. therefore, the need for special provisions for any
disadvantaged sections of the society is also recognised. In question
of reserved seats for women members in parliament it is argued that
to compare with men women in our country are in a disadvantaged
situation: their status is unequal and subordinate to that of men in
Constitution. Constitutional Law and Politics 317

the society. This is why the provisions of reserved seats for women
were mcorporated in the Constitution. The purpose was to ensure a
nhlniniLilli representation of women in parliament, and to ensure a
wider participation by them in national politics. But howsoever
noble philosophy worked behind the incorporat i on of this special
provision. one thing is clear that the Constitution makers did not
apply their cautious mind in making this system democratic,
effective and fruitful. They all had bitter experience that it is a trend
of post-colonial governance in developing countries that law has
been misused whenever any scope to that respect has been left.
Although the provision was made for a specific period of 10 years
onl y but method of election has made the whole pious purpose
meaningless.

It is for the method of election that these 45 women members

are being used as a ready tool or a 'vote bank' at the hand of the
majorit y party rather than true representation Because they are
elected or selected oil basis of proportional representation of the
parties in the parliament. A democratic people's Assembly should
discourage an influx of members through this process of 'backdoor
styles'. The practice is being viewed by conscious people with
contempt calling it backdoor democracy'. This provision for
reserved seats for women in our Constitution is being misused as a
'vote hank' or a 'balance of power' in the fNloing ays creating a
bad impact over the constitutionalism in Baiigladesh.

lii an interview iUi Barrister Aiiiir-L l Islam. he told the author that this pros isioti ssas
not incorporated in the lust drtlt (onsti [tit ioll of the eorimittee. later oil this
provisioti was inserted and he ehemeiitI opposed this pros ision. I 1k opposition \\ its
supported h tss o ssomen nieinhers of the (mist i tuent AssembIN I Uegum N u ahan
\1 u rshed and Badninnesa A hined ). I asked him "\\110 j rst coiieei\ cd the idea of
indirect election for s\oitlCfl nienibers ill reserved seats "! I Ic told that he could not
recollect ssho first conceived this idea. Dr. Kama] I lossain. the Chairman of the
driit'ting coninlitteC also told nc that alter 26 sears it sas impossible Ior him to
ill ed seats
re collec t o to conceis ed the idea. lie told tie that though soinien
were to be elected mdi reetls . it ssis on l\ Ior I() e:ii s. In the ( ' oust u(ijeuit Assenibl
debate no methodical ra as disclosed helund pros duuig br such pros isuons in
"as
the ('onti1utiOii. I'hc it, , tilicatmon shosvn b Aadii,',antan kitan in the .•\'ernhl
debate Voll-1 1 P.277) is not clear enough to get the trite rationale behind SUCII
pros ision.
31 8 Women Members in Parliament

First, a party gaining, simple majority in a general election can

usc the majorit y of these 45 seats as a tool to achieve its absolute
majority paving its easy way to get to power. For instance. the result
of the 1991 election i.e. the 5th Parliament Election gave the RNP
140 seats, Al. and allies 100, the JP 35. the J I 18 and others 7. I'll is
did not give any party an absolute majority (15 1). So it was not
possible lbr the I3NP to form government without power-sharing
with another party. However the uN P got support fbrm the .11 and
according to the understanding between them the RNP took 28
women seats and the Jl 2 (reserved seats were 30 then). Now
bagging these 28 seats the BNP acquired its absolute majorit y . So
had there been no reserved women seats or had it not been a 'vote
bank' system. the I3NP would have to have some power-sharing
agreement with other parties if ii were to Form a government. Thus
these 45 --omen seats are negating the peoples' mandate on one
hand and these are making impossible polities possible, on the other
hand.

Second, sometimes even in bringing a constitutional

amendment these 45 women can play a crucial role. For instance, it
was possible for Frsliad to pass the 7111 Amendment to the
Constitution mustering a two-third majority only because he could
bag these 30 women member as his ready weapon. This is why
Ershad was so paranoid about winning the 30 women seats that he
did not trust even his own party member in voting for the party
omen candidates. He promulgated a special Ordinance (Ordinance
No. XLVII of 1980) which provided for that if the returning officer
receives a nomination paper proposed and seconded by more than
halt' of eligible voters (MPs) the candidate would be declared
automatically elected.

Third. these 45 women members are likely to act as all time

bonds-servants for the ruling party to gear its expectation in
legislative business. Because in making laws, approving ordinances
or in defending a no-confidence motion the ruling party USCS them
as a necessary handy tool. Ihey can never raise even a minimum
voice against the decision of the ruling party, for they do not
represent truly any locality; neither do they represent women of
Bangladesh; they are to remain under the grip of the ruling party. It
Constitution, Constitutional Law and Politics 319

is due to this dependency relationship and low profile that the

female MPs in reserved seats so Lir have been branded as '30 sets
ol'orñarncnts in parliament (now 45 sets of ornaments).

Thinking for an Alternative to ensure Women's

True Representation
It cannot be denied that though women constitute half of our
population, they continue to he an under privileged section of our
socict\ . So reservation of seats for wonien members are nothing
undemocratic rather a good sign of social and political
development. But the present system does not allow for any
meanin g ful method of selecting women candidates Mio can truly
represent women section of our population. Nominations by
majority are a gilt given to selected women who are not required to
get through any election process. The absence of a contest restricts
the number of women enterin g the political arena and can never
lead to achieving the primary objective of the constitutional
provision that was framed for this purpose. In some countries, of
course, there are provisions for reserved seats for women members
in legislature but the y provide for direct election in reserved seats.
Nowhere in the democratic world such ignominious women
representation as exists in Bangladesh is visible.' We should,
therefore, suggest a wa y for making these reserved seats truly
representative. lhree alternative options are suggested below.2

Alternative One: Direct Election

Among the various ways of electing representatives, direct
elections are considered the most democratic. If we were to follow a
s y stem of one person t o ballots, women candidates could be
directly elected by the people to the vonicn seats. Each political
party would nominate candidates to the women seats as it does ut

'there are, of course. ô other countries ( flu 11 a Paso. Nepal.U g anda- United
ted Republic
of' iani.ania and Iritrea) where the constitution provides kir a proportion of seats to be
reset" ed fir ,vOnlen n parliament but It could not be kiio n practically these
I eserved seats are used as vote bank I based oi l supplied hN the
('i'rnnionssealih l'arliamentarv Association Seeretnrirt. I ondon and Woriren in
l'arl::inient (poster) printed blitter Parlian lent arv tni,rn. Genes al
In Su g gesting these alternatives I took help from C 1C Brfr/iii /'aisc''-2. Ja,ivan.
/ 995
320 Women Members in Parliament

general seats. Each voter would have two ballot papers: one for the
candidates to the general seats, and other for the women seat. lie or
She would cast one ballot for the general seat and one for the
women scat resultin g in 330 directly elected Members of
parliament. Administratively or logistically this would not be a
major problem if different, coloured ballot papers are used.

One argument against this methodwould be that the

constituencies would become too large and would he difficult for
women candidates to mount an effective campaign. The other
argument v ould be that in practice. only major party candidates
could contest. The answer to these arguments are that in any case,
88% of the voters in 1991 and 1996 voted for the four major
parties. General elections are based on party lines and modern
democracies are based on the party system. If we take this premise
as a base, then women party candidates would be supported by the
party organisation and the party candidates in the general seats.
Whereas a candidate in a general seat would campaign at union and
village levels, these women candidates would campaign at thana
levels with projection meetings at major centre. The advantage of
this method would be that:
i) all major parties would nominate candidates to the 30 seats
and therefore more women would he in electoral process:
ii) this would ensure better selection of-candidates:
iii) they would he exposed to an effctive electoral campaign:
iv) general voters would see 'omen oil campaign husting
and would he more amiable to future women candidates in
general seats:
v) the distribution of seats to political parties would reflect
iiiore accurately the popular mandate
vi) gradLially, more women could enter the general electoral
process SO that this particular Constitutional provision
would succeed in its objectives.

Alternative Two: Proportional Representation

A second alternative to electin g members to the reserved
women seats could be through proportional representation. There
can be two wa y s of doing this. One could he based on the total
Constitution, Constitutional Law and Politics 321

popular votes obtained by poitical parties in national elections.

Each party would nominate 30 women candidates, and this lists
would be published in order of priority. Seats would then be
appropriated to the parties based on the votes obtained by them
The advantage of this method is that, as the political parties would
have to list their candidates, a larger number of women would be
exposed to the political field. The selection process would be prior
to the election, and not gifted later. However since the lists would
be on a national basis there would not be an y particular women's
constituency, and therefore it would lack geographical
representation.
A second method of proportional representation would be to
allot seats to parties in relation to their strengths in the parliament.
Here also the members elected would not really fulfill the purpose
for which the constitutional provision has been provided.

Alternative Three: Election b y MPs of the General Seats

Comprising the Geographical Women Constituencies.
The election law provides for 30 women constituencies with
geographical areas. The law also says that a candidate would have
to be nominated for a particular women's seat and election would be
seatwise. Every women reserved seat , therefore, comprises more
than one general seats. If, according to this principle, the election to
women seat is restricted to Members of Parliament of that women's
constituency, then the party position would be different an
electoral adjustment would have to have taken place. In case of a
tic, the result can be decided by a toss. This system. therefore,
provides for a more equitable distribution of seats.

THE FOURTEENTH AMENDMENT

Background: This amendment was passed on 16 May, 2004. As
mentioned above in Tenth Amendment, the last extension of 30 reserved
seats for women members in parliament expired in 2001 and as a result
the 8th parliament did not have reserved seats. However, after three years
of the life of the 8th parliament, on 16 May, 2004 the ruling BNP placed
and passed the 14th Constitution Amendment Act to re-introduce
reserved seats for women in parliament. This time the number of reserved

21
322 Women Members in Parliament

seat for women member have been increased from 30 to 45. The main
provisions of the Act are as follows:

"65(3): Until the dissolution Parliament occurring next after the

expiration of the period of ten years beginning from the clatc 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 reserve fort y fives seats
exclusively for women members and the y will be elected by the
afuresaid members in accordance with law on the basis of procedure of
proportional representation in the Parliament through single
transferable Vote."
Insertion of new paragraph in Fourth Schedule;
"23. Temporary special Provision regarding women members in
the Parliament. (1) for the residual period of the Parliament in
existence at the time of the Commencement of the Constitution
(fourteenth Amendment) Act, 2004 there shall be reserved fort y five
seats exclusively for women members and the y will be elected by
members of the Parliament in accordance with law on the basis of
procedure of proportional representation in the Parliament through
single transferable vote.
(2) During the period mentioned in sub-paragraph (I). the Parliament
shall consist of the three hundred members mentioned in elastic (2)
of article 65 and the forty five women members mentioned in sub-
paragraph (I) of this paragraph."
Criticism: The 14th Amendment as a whole has more political
ramification than real. The provision for 45 reserved women seats in the
parliament has demoralised the idealism and spirit embedded in the
original constitution of 1972 particularly articles 10, 19(1), 27, 28(l),
28(2) of it. The thinking of the Constitution makers was to keep this vote
bank system operative only ten years which has been extended from time
to time by various government by amendments. When the 8th Parliament
increased the number of reserved seats for women from 30 to 45 with
indirect election system and extended for another ten years, it is clear that
the government's aim is to strengthen stigmatic vote bank system rather
than true democracy or women representation (See more discussion in
Chapter XVII).
Constitution, Constitutional Law and Politics 323

CIIAPiUP. XVIII

OMBUDSMAN
Definition, Origin and Development
The modern concept of ombudsman is a Scandinavian
institution and Sweden was the first country to introduce this
system. The Swedish word 'Ombudsman' means a delegate, agent,
spokesman, representative etc. So ombudsman means the man or
official who represents the people in their grievances or who acts as
a commissioner of parliament to redress the grievances of the
people. He is also called a 'grievance man'. The Oxford Companion
to Law' says that Ombudsman is a person appointed by parliament
to investigate citizens' complaints of executive or bureaucratic
incompetence or injustice but not illegality'. Frorn the functioning
of the office established so far in various countries it may be said
that Ombudsman is an office created either by the constitution or
law which is a body independent of the executive and responsible
only to parliament and the principal function of which is to
investigate complaints of maladministration 2 against various
government departments or other public bodies.

David. M. Walker. Clarendon Press. Oxford. 1980

2 Maladministration
Since the Ombudsman's principal function is to fight and investigate against the
maladministration of public servants and civil servants it is important to mention here
what maladministration is. There is no legal definition of maladministration. Richard
Crossman, then Leader of the I louse of Commons. wwhile piloting the Parliamenta ry
Commissioner Bill through parliament in 1967 described maladministration as bias.
neglect, inattention, dela y, incompetence, ineptitude, perversity, turpitude.
arbitrariness and so on. To he mentioned more. the resent parliamentary Ombudsman
of UK. W.K. Reid adds the following as his definition, of maladministration
Neglecting to inform a complainant on request ofhis or her rights or entitlement:
- Knowingly giving advice which is misleading or inadequate
- Ignoring valid advice or everruling considerations which would produce an
uncomfortable result for the ovcrruicr:
- Offering no redress or manifistly disapproportionate redress:
- Showing bias whether because of colour. sex or any other grounds:
- Omission to notiA those who thereby lose a right of appeal
- Faulty procedures:
- Failure by management to monitor compliance with adequate procedure:
- Cavalier disregard of guidance which is intended to be followed in the interest of
equitable treatment of those who use a service:
- Rudeness (though that is matter of degree)
324 Provisions ol'Ombudsrnan

The office of ombudsman was created first in 1809 when

Sweden adopted its new Constitution. The office came to be known
as the ombudsman of the parliament or Parliamentary Ombudsman.
In 1915 the office of the military ombudsman was created in regard
to defence and military administration. In 1968 these two types of
ombudsman were amalgamated and now there are four
parliamentary ombudsmen working in Sweden. One of them is the
Chief Parliamentary Ombudsman) Besides these parliamentary
ombudsmen there are some non-parliamentary orn hudsmen in
Sweden like -
i) Equal Opportunities Ombudsman;
ii) Children Ombudsman;
iii) The Press Ombudsman;
iv) The Ombudsman against Ethnic Discrimination; and
v) The Consumer Ombudsman etc.

Following the footsteps of Sweden the institution of

ombudsman was adopted in other countries-by Finland in 1919,
Denmark in 1955, New Zealand in 1961 and Norway in 1963. A
similar office styled as Parliamentary Commissioner (popularly
known as Ombudsman) was created in UK in 1967 by the
Parliamentary Commissioner Act, 1967. Australia created the office
in 1973. So far there are 46 countries who have parliamentary
ombudsman, 2 Among our neighbouring countries Pakistan has
successfully adopted this institution, In India ombudsmen are
known as Lokpal and Lokayakta. In SriLanka it has one
ombudsman known as Parliamentary Commissioner for
Administration which was introduced in 1981.

- Unwillingness to treat the complainant as a person with rights.

- Refusal to answer reasonable questions.
- Partiality: and
- Failure to mitigatc the effects of rigid adherence to the letter of the law where that
produces niaiiifcstly inequitable treatment. (source Making
king Par/lantern E/Jèctive
A Parliamentary Report by F. K. Siddiqui & others Published by CAC in 1994)
Ganguli. I3asudev, .-l(Injjnjstraijw Thhzina/ Aci, 1980, (l)haka : Warsi Hook
Corporation. 1993). P.3
also. Kabir. Abul Ilasnat Monjurul. O,n/,udsmwz •for lkrnglades/i Problems &
Prospects (a paper read in 1996)
2 Kabir. Ahul 1-lasnat Mon jurul. Ibid. P. 7
Constitution. Constitutional Law and Politics 325

Why was the Institution created ?

In Sweden the purpose of creating the office of ombudsman was
to safeguard the rights of citizens from the administrative excess, to
examine complaints of infringement of the Swedish Bill of Rights.
There, are, of course, some traditional methods whereby numerous
organs of the government may be monitored and kept under control
in the interests of the governed and various grievances of citizens
can be redressed. These methods are mostly legislative and judicial.
Among the legislative methods parliamentary questions, no-
confidence motion, censure, cut motion, adjournment motion etc.
are prominent. But due to strict party discipline these devices are no
longer devices to bring the administration under strict control and
the citizens' grievances can little be redressed. The legislature is
'more a forum for the ventilation of grievances than for securing
their redress." Again, the members of parliament have little time to
attend to all the grievances of their constituents. With the enormous
growth of governmental authority the volumes of request for such
assistance has placed an impossible burden on individual members.
Hence something more is needed to meet current needs and the
answer has been found in creation of the office of ombudsman.

Again, the technological development and the growing

complexity of governmental functions and responsibilities are
forcing the state to leave a wide discretion to the bureaucracy. With
this wide discretion has increased administrative abuse of powers
affecting the lives and rights of ordinary people in varying degrees.
Also the bureaucrats are not directly accountable to parliament.
Complaints can, therefore, always be heard that public authorities,
although they have acted within the law, have failed to observe the
proper standard of administrative conduct and these are the
situations whlch neither court nor any tribunal can offer remedy.
Experience shows that normal judicial system is not effective in
preventing such abuse of power. Also judicial remedies are mostly
time-consuming and expensive. These considerations and factors
led the development of a system of ombudsman enabling proper
investigation of the citizens' complaints against abuse of power by
administrative officials and redress made in a easier and quicker
way.

Garner. ,fc/ni,n,sirative /.cnl. 7th ed., london Buuerworths. 199) .11.90

326 Provisions of Ombudsman

It was an appreciation of the short-comings of the traditional

parliamentary devices of redress which led justice— an all party
organisation of lawyers, to establish Iii 1960 a committee to
consider alternative procedures in Britain. The Committee noted
that in practice complainants have grievances requiring different
types of redress procedures. Large number of cases exist where the
complainant is based on some allegation of maladministration in
the exercise of power. The contention may, for example, be that
injustice has resulted from inordinate delay in reaching a decision,
in misleading advice having previously been given by the
administration, or in bias against the complainant having been
displayed by officials. In such type of cases where what is needed is
not so much reconsideration of the merits of the decision the
committee recommended for an institution of ombudsman or
'grievance man. The Committee recommended that the ombudsman
would act as an agent of parliament 'for the purpose of
safeguarding citizens against abuse or misuse of administrative
power by the executive ........He is not a super-administrator to
whom an individual can appeal when he is dissatisfied with the
discretionary decision of a public official in the hope that he may
obtain a more favourable decision. His primary function ... is to
investigate allegations of maladministration'. This he will do in
informal manner, inquiring into the matter of the complaint fully,
and having access to the departmental files.

How far Ombudsman has been effective Citizen's Watchdog in

various Countries
There are now over a hundred local and national ombudsmen
around the world covering almost 80 countries who maintain
various categories of ombudsmen with or without parliamentary
ombudsman. Such an overwhelming adoption of the institution
proves its success,

While the institution was being adopted in Scandinavian

countries apprehension was expressed that the ombudsman might
turn into a parallel branch of government constantly looking over
the shoulder of the hurried officials. Instead of setting as a public

Justice Report. Para 2 & 8. Quoted by. Garner. ibid. P 91

Constitution, Constitutional Law and Politics 327

watchdog over the official's acts the ombudsman, it was alleged,

might become a blood hound sniffing after his every decision. In
Denmark, before the scheme was introduced the civil servants
opposed it, but after its adoption they soon realised that the office
was an aid rather than a hindrance. Furthermore, the minor officials
soon found that the ombudsman was conducive to the development
of harmonious boss-subordinate relationship. As Garner says,
'friendly relations between the ombudsman and the administration
was. and remains an important feature of the institution in all the
four Scandinavian countries and elsewhere, where the office has
been operating, enabling the ombudsman to achieve many positive
results "behind the scenes' in an informal manner."1

Secondly, it is sometimes argued that in a large populous

country the ombudsman would not be able to handle a huge
number of complaints. This logic, however, does not carry much
weight. Because the ombudsman has power to reject or accept the
complaints paying due consideration to the socio-econorn ic
conditions and limitations of national wealth.

Thirdly, it is also argued that the publicity about the activities of

the officials may be dangerous to maintain the necessary secrecy.
This point also does not carry much weight since the names of
complainants and officials involved in cases are not ordinarily
revealed and publicity is voluntarily controlled by the Press. In the
nature of things no publicity is given to minor cases.

Fourthly, it was also stated that the office of ombudsman was

too personal and too dependent upon one man's integrity and
understanding. The demands of the offices were such that it was not
possible to find the right man for the right job. This argument also
does not hold good in view of the observation that the ombudsman
has not been constituted to serve as a panacea for all the ills of
administration. With sincerity of purpose it was found possible to
locate the best man among the jurists in the country.

Garner. A thninislralh'e I.cni, Ibid. P. 91

323 Provisions of Ombudsman

Fifthl y , it is also argued that in true sense the ombudsman has

no real power, for he can make a recommendation for redress only
he himself cannot take action for redress. But such an argument is a
common ready-made one, for it may be raised in every case of
controlling agency including the judiciary. Actually the ombudsman
is appointed by the legislature he is fully independent of the
executive: he has the power to interfere in an y sphere of
administration. If gross maladministration is found, he can make
order to rectify and the experience in countries which has
introduced this institution, shows that his orders are promptly
complied with. If, however, in any case, his order is not complied
with, he may make report to parliament and debate may take place
in the House; also the media can publicise it. Ultimately the
administration will have to rectify it.

On the whole, it has been generally accepted that the office of

the ombudsman has been very useful in safeguarding the rights of
the citizens from bureaucratic excesses. The successful working of
this institution in Scandinavian countries has aroused great interest
in both developed and developing countries.

Categories of Ombudsman
From the view point of appointment procedure and
accountability ombudsman may be of two types-
i) Legislative or Parliamentary Ombudsman; and
ii) Executive Ombudsman,

When an ombudsman is appointed by the parliament and he

remains responsible to the parliament only, it is called
parliamentary ombudsman. The ombudsmen of Scandinavian
countries are parliamentary ombudsmen. On the other hand, when
an ombudsman is appointed by the executive authority and it
remains accountable to the executive authorit y, it is called
executive ombudsman. The Nigerian Ombudsman is an executive
ombudsman. It is worthy of notice here that an executive
ombudsman cannot act as the citizens' defender, watchdog or public
safety valve against the violation of public ri ghts. Because he
cannot act independently in favour of citizens. As he is responsible
Constitution, Constitutional Law and Politics 329

to the executive, he may always be dictated by the executive. This

type of ombudsman may be branded as 'Yes Boss Ombudsman'.
Generally the military rulers appoint such type of sham
ombudsman.

It is also to he mentioned here that a comparative study of this

institution will give idea that there are sonic ombudsmen which are
neither parliamentary nor executive type as has been mentioned just
now. For example, in Swdcn there is the Press Ombudsman which
is not based oil legislation. It is entirely voluntar y and wholly
financed by the press organisation. Likewise, the office of the
Consumer Onibudsman in Sweden was created under the Marketing
Practices Act. 1970. He is neither appointed by parliament nor
responsible to it: rather he is appointed b y the King-in-Council and
has position like that of other civil servants.1

Mode of Appointment of Ombudsman

There are three available modes of appointment of ombudsman
in the world
I. Appointment by National Assembly or Legislature:
2. Appointment by the Head of the State: or
3. Appointment by the Head of the State on the
recommendation of parliament.

In Scandinavian countries ombudsmen are appointed by the

parliament. But when all is appointed by the executive
in an unfettered way there is a question of objective or impartial
appoint
ment, particularly, in developing countries. In Britain. the
Parliamentary Commissioner for Administration (PCA)
(Ombudsman) is appointed by the Crown oil advice of the
government but before any such appointment is made, there should
be consultation with the chairman of the House of Commons Select
Committee on the Parliamentary Commissioner for Administration.
The chairman of this Committee is, by convention, always a
member of the opposition party. The third mode of appointment is
also good. Because the executive cannot, without recommendation

Rahman. Mi,.anur. ('onszwlcr Protection Law and Swedish Approach, (l)haka:

Prudential Publi caLofl. 1994). P.39
330 Provisions of Ombudsman

of parliament, appoint anyone it wishes. The Ombudsman Act.

1980 of Bangladesh provides for this type of appointment.

The vital point to be borne in mind here is the question of

accountability of the ombudsman. Whatever may he the mode of
appointment, if ombudsman is made accountable to the executive, it
will not be able to discharge its function independently and
impartially. This is why in all democratic countries the ombudsman
is made responsible to parliament.

Method of Work
Generally an ombudsman may receive complaints from three
sources:
i) Complaints sent to him by members of the people (MPs);
ii) Complaints made to him by any person
iii) The ombudsman may, on the basis of a newspaper comment
or otherwise, proceed suo niotu.

Of these, of course, the individual complaints are the main source

of cases brought to the Ombudsman's attention. Any individual
feeling aggrieved by any administrative action or inaction may file a
complaint to the ombudsman. It is not necessary for the
complainant to employ legal advice. What he needs is to make the
complaint in writing and whenever possible. with appropriate
evidences and relevant documents supporting the complaint. Once
the complaint has been received in the office of the ombudsman.
the case proceeds largely by correspondence. The ombudsman
forwards the complaint to the official concerned and asks for an
explanation; the officer returns its version of the matter together
with any relevant documents. The ombudsman, if satisfied, informs
the complainant of the official explanation. If he is not satisfied, or
if the complainant produces further evidences or challenges the
official version, the ombudsman continues his investigation until
either the complaint is found to be justified or the complaint is
eventually d i smissed as unjustiuied. It may be mentioned here that
during the investigation, the ombudsman shall have access to all
files and minutes of courts and agencies even to those normally
Constitution. Constitutional Law and Politics 331

privileged or secret; he may ask the department concerned to

produce and submit such information as may be necessary for the
ombudsman to decide upon the complaint or information.

Besides this, the Swedish ombudsman undertakes periodic tours

of inspection in the provinces or central offices, normally giving
only a days notice of his intention. These inspections are at random
and they may concentrate on the financial affairs of the office
concerned. Normally the ombudsman or his deputy carries out
about four or five tours of inspection a year, each tour lasting a
week or so.

Why is an Ombudsman must for Bangladesh

There are some justifiable and practical reasons which
necessitates the immediate establishment of ombudsman in
Bangladesh.

Firstly. like other states Bangladesh is a wellhre state and also it

is one of the largest populous countries in the world. As a result,
there has been an wide expansion of governmental functions of
various kinds. The executive officials have been vested with
unlimited and often unguarded discretionary power. And this
unlimited power has given rise to widespread abuse of power and
maladministration causing an indescribable sufferings to the
ordinary people. The most significant area where our officials in
general lack integrity is corruption in administration. Corruption is
the biggest evil in our administration, it is not only an evil but also
a fatal disease which has adversely affected it; it is a dangerous evil
of democracy. Corruption breeds corruption. When it sets in, it
grows like weeds in a garden. Corruption is seen in different forms
such as bribery, illegal gratification, frauds, embezzlements and
misappropriation in commercial transactions and monetary
disbursements of the government, tempering with the official
records. use of official position for personal gain and acquisition of
property, nepotism and favouritism, violation of official rules for
personal interests, involvement in smuggling, investment in others
name inside or outside the country and even unwillingness to
332 Provisions of Ombudsman

perform the official duties properly.' As mentioned by a

commentator, the evil effect of deficient laws can be mitigated by
good officials, but the evil effect of bad administration cannot be
surmounted by go od laws. Public men and government officials
should subject themselves to regorous discipline. This is without
doubt the prime need of society. There can be no democracy if
administration lies in the hands that are tainted. This is why there is.
what Wade-` calls "an ombudsman fever", that is to say, demand for
a functionary who can hear and investigate complaints on behalf of
citizens against the administration. So in quest of a good and
efficient administration a strong and effective institution of
ombudsman is a must. So far in the world the office of the
ombudsman has been recognised as creative office. It is creative in
that it is always seekin g or monitoring towards improvement in
administrative practices and the breaking down of 'red tape', a
'taboos' of by-gone era of administration.

Secondly, though we have a court system to resolve legal

disputes of various types. it is beset with some chronic problems.
The most prominent of them is the inordinate delay due to which
our courts can provide only technical Justice rather than 'substantial
justice'. But the problem of delay lies not in the paucity of judges
only (judges attribute only 10-20% of the delay for their business
and paucity') but mainly in the lack of controlling system, defective
investi g ation procedure, corruption by the ludges, clerks, peons,
peshakar and sheresiadars who by taking 'illegal gratification,
misplace records, remove documents and sometimes even destroy
the records' 3 resulting in the setting hindrances to the smooth
functioning of the system. But these artificial and technical
problems can easily be mitigated by establishing a department of
ombudsman,

Ahmed. Au. Qin hudc,n an for Bangladesh. Ibid. P.45

2 Islam. Mahniudul. (ons(duliona/ Lao af//aiii/or/es/i
hid. P. 45
inwards Administrative Justice. Quoted b y . II idavatul lab. M. Democracy in India cord
the Judicial Process. (Calcutta : Asia Publishing louse. 1965). P. 27
According to the report oil project "Dc/ac in ('nirls and ('ouii rnanagencenl' by the
I3ILIA of 1995.
FOCUS - a ournal ui legal studies v>t-i. 1993. 1187
Constitution. Constitutional Law and Politics 3
33

Thirdl y , in most cases our Courts give the declaration of remedy

whereas the real remedy lies with the administration and law
enthrcemcnt agency which frequently flouts the decision of the
courts. The case of ombudsman in Bangladesh. therefore, came in
focus in a number of cases of arbitrariness of the executive which
called for remedial measures through a proceeding for writ in the
High Court division. The following instances will suffice to
substantiate the point.

In Far:cina Hoque V. Bangladesh (writ petition no 271 of

1990) Sanaul Hoque Niru was arrested and detained first on 13,9.87
under the Special Powers Act. Ills detention was challenged in writ
petition no 187 of 1988 and the court declared the detention illegal
and directed the release of detenu on 10.5.1988. But Nini was not
released. Rather another order of detention was served against him
on 29.9.88. Niru was not placed before the Advisory Board within
the statutor y period of 120 days. The High Court Division again
declared the detention illegal and directed his release. But
government did not release Niru. Another order (3rd time) was
passed and it was again challenged by another writ petition (writ
petition no 989 of 1989). Again, the court declared the detention
order illegal and directed the release of the detenu. But even this
time Niru was not released. Rather another detention order was
served. The matter came up before a Division Bench of the High
Court Division in writ petition no 271 of 1990. The High Court
Division said:
'The least can be said that the detaining authority is paying little
regard to the orders of the court. It is unfortunate that the authority
which is obligated under Article 32 of the Constitution to protect the
liberty of the citizens and further required under Article 112 thereof
to act in aid of the courts order should flout the laws by resorting to
authoritarian acts ......
Had there been an ombudsman the government would not be
able to flout the courts order in such a manner.

Likewise it is frequently observed that in many cases relatin -g to

property matter where the government or the administrative -
authority is a party the decree holder cannot realise the decree due
to artificial barricade created by the administration and law
334 Provisions ol' Ombudsman

enforcement agencies. In Ruc/Iiu Kania V . Depiei' Commissioner

(31 DLR 352) the petitioner's property was requisitioned. This was
challenged and the Pakistan Supreme Court declared the requisition
order illegal. But the petitioner's property was not released. The
Deputy Commissioner asked the petitioner to file a civil suit for
restoration of possession of his property thereby giving a
permission to the respondent who illegally enjoyed the property
already for 9 years. This case clearly shows the executive's
arbitrariness on the face of it. Nothing is more t y rannical than the
tyranny in the name of law. The whole device was in the name of
establishing the title 'so the proceedings may take another decade to
finalize and the respondent may be able to enjoy the fruits of the
illegal possession till such time". The idea is simple —'you go on
fighting in court. in the meantime 1 enjoy the fruits of my ill-gotten
endevour." Had there beeii an ombudsman, the petitioner could
easily, through the intervention of the ombudsman .realise the
decree and had not to suffer for 9 years.

Likewise in Nazrul Islam's case' it is found that Nazrul Islam, a

young boy was illegally detained over 12 years. The then chairman
of Satkhira District Council in collaboration with a police officer
tiled a case against Nazrul Islam. lie was sent to jail. This was done
by the interested group just for grabbing his paternal property. Had
there been an ombudsman the necessity for bringing the above
mentioned cases to courts would not have arisen and the
administration would not he able to neglect the courts order.

Fourthly, criminal cases tiled in a year are far greater in number

than civil cases. And these criminal cases are dealt primarily with
Magistrates' courts. But these Magistrates' courts are hot-bet of

Chosdhury. I3adnil I Iaider. C . J. 'Oinhw/smao is inusifo;' Par/,ameniarv

Democracy ' - a paper.
(State v. DC .VaiItkhij, 45 DIR 1993) Nazrul Islam's case is the first suo niolu case of
the 1-11gb Court Division in Bangladesh. The word 'suo moiu' means 'upon own
initiative. These cases are not Filed by an particular person the court itself oil
basis of a news flinii an\ source takes the case by issuing rLIIC against appropriate
authority . In Nairul Islam's case the I 11gb Court Division, oil basis of news in the
JiieJàq (a Bengali daik) oil l8th October 1992. issued rule under section 491 of the
Cr.P.C. To he mentioned here that the second suo inc/Il rule was issued by the I (igh
Court Division oil against the detention olliSgirl lilieda Moccord.
Constitution. Constitutional Law and Politics 335

corruption, It is horrible to hear from advocates about corruption in

Magistrates courts in the form of partial judgment. bails in non-
bailable cases depend not on the merit of the case but on the
amount of money offered to the granter. 2 Had there been an
ombudsman these magistrates would not be able to take bribes and
to be so corrupt as they are now.

Fifthly, public servants of some autonomous bodieslike various

corporations and particularly most of the teachers of government
universities are doing the most corruption and illegalities by
evading their classes and engaging thejnselves in extra-profitable
works. If there is an office and proper functioning of a duly
appointed ombudsman by the parliament, then the accountability of
these public servants is likely to be well ensured and our public
administration will be more effective and clean for the benefit of
the people.

Law and Constitutional Provisions for

Ombudsman in Bangladesh
From the above discussion it is clear that the establishment of
an ombudsman in Bangladesh will undoubtedly go a long way in
helping to establish a real democratic social order and polity based
on parliamentary system of government for the wellbeing of the
people at large. Because the ombudsman will function informally
without the assistance of lawyers to be engaged by the
complainants. Hence justice maybe within the reach of common
men who are often unable to pay the fees demanded by the lawyers.
And also it will be able to investigate complaints quickly and give
redress to the grievances of public. After examining the
performance of the Parliamentary Commissioner (British
Ombudsman) 1 1'rofi2ssor Wade Commented
"The Commissioners reports show that he has been able to
remedy a great many cases of injustice where, almost certainly no
remedy would otherwise have been obtained. In general, he has
found that the government departments are willing to pay
compensation or otherwise make reasonable amends when he has

2 ftc /U'faq. dail y Ben gali News paper. 17.06.91 & 3.6.91
336 Provisions of Oni hudsman

exposed maladministration, though in sonic cases he has had to press

hard for it.'

Keeping in vigilant line with the importance and peforniance of

Ombudsman in different countries and also being convinced by the
fact that an institution of Ombudsman would be essential for
safeguarding the rights of the common people from
maladministration or administrative excesses, our Constitution
makers inserted in Article 77 of the Constitution the provision for
an institution of Ombudsman in 1972. But no positive attempt was
made to introduce this institution till 1980. In 1980 President Ziaur
Rahman took initiative to establish the office of Ombudsman in
Bangladesh and accordingly an Act was passed by the then
parliament in 1980. 1 However, the subsequent governments.
particularly Ershad during his 9 years dictatorial rule never thought
about the establishment of this office. After long struggle against
Ershad regime Zia's party BNP again came to power through a free
and fair election. The leader of the BNP and Prime Minister
Khaleda Zia was said to be determined to fulfill the commitments
made by her husband and the establishment of the office of
Ombudsman was expected to receive priority. But unfortunately
BNP did not bring the Act into force. The AL Government in the
seventh parliament also did not bring the law into force. The real
problem lies with the leadership weakness which I will discuss in
the last chapter. If democracy is to give a fair trial in Bangladesh an
office of Ombudsman is a must.

How effective would be the Act if implemented

Though the initiative of making the Ombudsman Act 1980 has
been a promising step, the examination of its different provision
will reveal the idea that the Act suffers from many democratic
mechanisms.

The ombudsman Act. 1980 (Act no XV of 1980).

Constitution, Constitutional Law and Politics 337

First, under section 6 of the Act the Ombudsman is empowered

to investigate only such actions of a Ministry, a public officer or a
statutory public authority as-
(I) has caused injustice to any person;
(ii) has resulted in undue favour being shown to any
person; or
(iii) has resusited in accrual of undue personal benefit or
gain to any person.

Second, besides the above three types of actions specified in

section 6 of the Ombudsman Act 1980, the Ombudsman cannot
investigate into any other matter. This the Act does not allow the
Ombudsman to scrutinise complaints against the President. Prime
Minister, cabinet Ministers, CAG and Chairman of the PSC.

Third, the Ombudsman does not have any jurisdiction to

examine complaints against the local government bodies.

Fourth, under this Act the permanent secretaries of different

ministries have been given wide power to refuse to release
documents or information or proceedings of the Council of
ministers on the grounds of security and maintaining proper
international relations etc.

Fifth, under the Act the Ombudsman will have no effective

independence, he will have to seek permission from at least 3
ministries including the Ministry of Finance to spend mon..y.

Sixth, the Act empowers the government to exempt any public

functionary or class of functionaries from its jurisdiction (Section
15). This is the most dangerous element in this Act. The exercise of
this power is likely to make the office of the Ombudsman into a
toothless tiger'. The Law Commission has expressed the view that

The Law Commission Report. 2001 (second part).

22
338 Provisions of Ombudsman

if corruption of public functioneries are kept out of the jurisdiction

of the Ombudsman as in the present Act, this institution will
virtually he ineffective and will not be able to meet the expectation
of the nation. The Commission also opines that both the
maladministration, corruption and illegal acquisition of property by
public functioneries should be within the jurisdiction of the
Ornh'idsman.

Seventh, the Law Commission also reports that the Ombudsman

Act 1980 was passed in view of Presidential system of government.
Since there is parliamentary form of government at present in the
country the Ombudsman's jurisdiction should be wide enough to
cover all ministerial and public activities including local
governments'.

he I a s Commission Report. 2001 (second part).

Constitution, Constitutional Law and Politics 339

CHAP YEA X1

THE JUDICIARY
One of the there organs of the government is judiciary. The
judiciary of a country comprises all courts and tribunals which
interpret law, settle legal disputes, enforce rights of the citizens and
impose penalty to the offenders.

Philosophy Underlying the Formation of Judiciary

One of the primary objects for which a stale was established in
the society was the creation and protection of individual's rights. But
an independent organ as the means through which this object might
be accomplished has been recognised and existed from early times.
This independent organ is judiciary. An investigating look from
broader point of view will reveal the idea that the existence of a
judiciary does not depend on the existence of a legislature. Because
the legislature does not, in a sense, create the rights of individuals; it
only recognises the rights. Rights originate in the society as ultimate
results of mutual interactions among individuals interse or
individuals and other social organisations. This is why even in the
absence of legislative organs the courts might apply rules derived
from other source like form their own previous decisions or from
customs and thereby recognise rights of individuals. A society
without a legislative organ is conceivable, and indeed fully
developed legislative organs did not make their appearance in the
life of the state until modern times, but a civilized state without
judicial organs is hardly conceivable.

The Independence of Judiciary

The first thing which must come into consideration of the
administration of justice in a society is the independence of
judiciary. A sound and independent judiciary is the sine qua non and
pre-requisite of a healthy society. A society without crime and
dispute is unthinkable. Again a society laden with the influx of
crimes and disputes is not at all a safe abode for human habitation.
So a balance must be maintained to live in a society. And that very
balance is maintained by the judiciary administering justice in the
340 The Judiciary in Bangladesh

society. But if the judiciary is not independent, it can hardly be

expected to render impartial justice. 'There is no better test of the
excellence of a government", rightly says James Bryce, "than the
efficiency of its judicial systems, for nothing more nearly touches
the welfare and security of the average citizen than his sense that he
can rely on the certain and prompt administration ofjustice ..............
if the law be dishonestly administered, the salt has lost its savour; if
it be weakly or fitfully enforced, the guarantees or order fail, for it is
more by the certainty than by the severity of punishment that
offences are repressed. If the lamp of jtistice goes out in darkness,
how great is that darkness!"' Referring to the importance of the
independence of the judiciary, an eminent authority, namely, Henry
Sidgwick, has gone so far as to say that, "in determining a nation's
rank in political civilization, no test is more decisive than the degree
in which justice as defined by the law is actually realized in its
judicial administration; both as between one private citizen and
another, and as between private citizens and members of the
Government."2.

k-' (jndependence of judiciary truly means that the judges are in a

/ position-to render justice in accordance with their oath of office and
only in accordance with their own sense of justice without
submitting to any kind of pressure or influence be it from executive
or legislative or from the parties themselves or from the superiors
and colleagues.) And this concept of independence of judiciary, as
recent international efforts to this field suggests, comprises
following four meanings of judicial independence3:
( Substantive Independence of the Judges;
X. Personal Independence of the Judges;
. Collective Independence of the Judges; and
. Internal Independence of the Judges.

Bryce. James, Modern Democracies (1929), P. 384, Quoted in The Dhaka University
Studes Part. F. Vol. 4, P. 4
Henry Sidgwick, The Elements of Politics (1897), P. 481
Ban, M. Ershadul. The Dhaka University Studes Part. F. Vol.IV No.1 (1993). P.2
Constitution, Constitutional Law and Politics 341

It is pertinent to mention here that the concept of personal and

substantive independence of individual judges is universally
recognised by law and legal experts. But the concept of collective
and internal independence of the judiciary as a body was recognised
first by the International Bar Association's Minimum Standards of
Judicial Independence. 1982 and following them by the Montreal
Universal Declaration on the independence of Justice, 1983. This
recognition is considered as one of the significant contributions to
the international standards ofjudicial independence.'

,a(ubstantive Independence of the Judges.

Substantive independence, which is also described as functional
or decisional independence, means the independence ofjudges to
arrive at their decisions in accordance with their oath of office
Without submitting to any kind of pressure- outside or inside-(&om
government and other centres of power, public and private; and, on
the other hand, the inside pressures from parties themselves) but
only to their own sense of justice. In determining the minimum
standards of judicial independence the International Bar Association
suggests in 1982 that in discharge of his judicial function a judge is
subject to nothing but the law and the commands of his conscience.

Personal Independence of the Judges.

Personal independence means that judges are in no way under
any interference of the executive or legislative in discharging their
judicial functions. In respect of personal independence of the judges
the International Bar Association says that it means that the terms
and conditions of judicial service are adequately secured so as to
ensure that individual judges are not subject to executive control.

..vc. Collective Independence of the Judges.

Collective independence means the institutional, administrative
and financial independence of the judiciary as a whole vis-a-vis
other branches of the government namely the executive and
legislative.

Mid. P.3
342 The Judiciary in Bangladesh

Internal Independence of the Judges.

Internal independence of the judiciary means the independence
of a judge from the interference of his judicial superiors and
colleagues. In other words, it is the independence of a judge or a
judicial officer from any kind of order, indication or pressure from
his judicial superiors and colleagues in deciding disputes.

Of these four types of independence of judges the substantive

independence is most important. Because it is the inner-strength of
the judges which provides the steering-force for them to maintain
their impartiality in discharging judicial functions. Again, unlike
collective, individual and internal independence, it cannot be
ensured by law; it is a quality which is attained by the judges
depending on their own sense of justice. When a judge administers
justice, it is presumed and expected that he will administer justice
impartially. If he, inspite of having a better protection of collective,
individual and internal independence, administers justice in a partial
way nothing can prevent him. So it is the substantive independence
i.e. the SCflSC of justice which is a cardinal virtue for the judges to
maintain impartiality in administering justice. And for this very
reason it is suggested that positive wording should be inserted in the
law concerning the appointment of judges so that men of keen
intellect, high legal acumen, integrity and independence ofjudgment
can be taken as judges.

Conditions for Independence of Judiciary

The above discussion reveals a necessary idea that the
independence of judiciary depends on some conditions which are as
fbllows:
A. Mode of appointment;
B. Security of tenure; and
C. Adequate remuneration and privileges.

A. Mode of Appointment
As mentioned earlier the conditions for appointment of judges
should be a healthy one so that men of keen intellect, high legal
Constitution, Constitutional Law and Politics 343

acumen, integrity and independence of judgment from among the

lawyers gets opportunity to act as judges. If there is any scope of
personal favouritism and political bias in appointments, men of
integrity and sense of justice will not be appointed as judges and
when the judges lack these qualities, they will administer justice in a
partial way resulting in low quality ofjudgment and such a situation
will compel the people to withdraw their confidence from the
judiciary. So the substantive independence which is the cornerstone
of judicial impartiality depends on the method of appointment. As
professor Garner says-"if the judges lack wisdom, probity and
freedom of decision, the high purpose for which the judiciary is
established cannot be realised. The existence of these necessary
qualities depend in large measure upon the method by which the
judges are selected."'
The existing methods by which judges are chosen in different
countries of the world are of following there:
1. Election by the people;
2. Election by the legislature; and
3. Appointment by the exec4itive.
Election by the People
This system of popular election of judges was first introduced in
France in 1790. But this system was not a successful, for the masses
of voters do not always possess the understanding necessary to
appreciate the soundness of judicial opinion. It was the result of the
elections which took place in 1793 that most of those who were
elected were engravers, stone-cutters, clerks, gardeners and common
labourers who had no quality to administer justice. This is why with
the advent of Napoleon the system of popular election was
abolished.
This method, of course, is now in vogue in some of the States of
the American Federal Union. The chief disadvantage of this method
is that different political parties nominate their candidates and
people being influenced by the parties elect a candidate though that
particular candidate has no quality to administer impartial justice.

Garner. James Wilford, i'o/itical Science & Government, Ibid. P.722

344 The Judiciary in Bangladesh

Judges, therefore, elected by this method become subject to popular

passion and prejudice. It tends to lower the character of judiciary.
Again, it is impossible for a judge to put for the electorate either a
programme or a personal success concerning his judicial conduct.
This is why Laski says that 'of all the methods of appointment that
of election by the people at large is without exception the worst."
Election by the Legislature
This method exists in Switzerland and in two States of American
Federal Union. This system is not considered good because in this
system judges are nominated by political parties in the parliament
and the majority is sure to get his candidate elected whatever be his
quality to administer justice. It is contended that when a judge is
elected with the support of a majority party, he will have to appease
that party and it will be quite impossible for him to administer
impartial justice.
Appointment by the Executive
The appointment of judges by the executive is the most common
and available method of choice and this system is in vogue in nearly
all countries. Appointment by the executive may be of two types -
I) by the executive independently ; or
ii) by the executive after consultation with the court or from a
list of nominees presented by the court or with the consent of the
legislature.
The first method is sometimes contended to be objectionable in
the sense that personal favouritism or political consideration may
determine the appointments and instances are cited from Britain,
France, USA and largely from third world countries. Mr. Briand,
when minister of justice of France in 1912 himself declared that the
judges had become the prey of the politicians.'

The second method is most democratic and objective. Because

when the court prepares a list or the Chief Justice consults he, who is
closely associated with the performance of Bar, will select the name
of those lawyers who are men of high legal acumen, integrity,

1 Ganier. .1W. Political Science & Government lbid P. 728

Constitution. Constitutional Law and Politics 345

independence of justice etc. Such a method of appointing judges is

conducive to the development of the standard of judicial decisions
on the one hand and on the other hand, it is best able to ensure
impartial justice in the country.

Appointment of the Chief Justice:

Please sec pages 353.
So far there has been 14 Chief Justices in Bangladesh since
independence. Their name, date of appointment and of retirement
has been given below:
Name Appointment Retirement Comment
I. .4.S Al. .iatein /2.01. 1972 He was soar,7 in as (lie first
17.12.1972 06.11.1975 Chief Jvstics of the 11/p/i Court
of Bangladesh on 12th
Januc,rv, 19 72 i,,aler the
Provisional Co,istii,,tioi, Order
read trill, the Proclamation of
liic/epenclet ice. 1k was SOOnn in
on / 7th December. 1972 as the
fIrs! C/i/el .1 vet/ce oft/ic Supreme
Court of //cmglodesh under the
new ConsOlatiOn of I/an glades/i.
2. A.B. A/ahmucl
Hussain 07.111975 01.02.1978
3. Kernalueldin
Hussain 02.02.1978 12.04.1982
4. F.K. AlA. Altoiint 13.04.1982 30.11.1989
5. Badrul Haider
Chowdhurt 0112.1989 31.12.1989
346 The Judiciary in Bangladesh

6. Sahabuddin Pro,,? 01.01.1990 no appointment

Ahmed 14.011990 01.02.1995 was given to the office of the
Chief Justice until 14.011990.
Justice Shahabudclm A hined
acted as temporar y Chief Justice
under Article 97 of the
Constitution.
/"ro,,, 6th December, 1990 to 9th
October, 1991 .S'ahohuddin
Ahmed acted as A cling Presedent
of Ilangiac/esh and in this period
Justice 1-Iahibw' /?ahmnan acted
as Acting Chief Justice.
7. Iiluha,nn,ac/
[lahihur 0102.1995 30.04.1995
Ralunan
8.A.T.Af.AJ:a/ 01.05.1995 01.06.1999
9. 1usiafi7 Ka,nal 01.061999 3112.1999
10.Lot6er RaIi;nan 0101.2000 2802.2001
A1C/7/flU(/U/ 28.02.2001 18.06.2002
Ainiji
C/,oivdInrv
/2. .lk,inu,- Re:, 19.06.2002 22.06.2003
C/ioudhurv
13. A.tl. Hasa 23.062003 76.01.2004
14. .11?. 27.01.2004
,t..iucjas,sir
liussain
15. tIu1n,ad 0103.2007 ................
l?uhul .-In,in
Source: Collected from dailies.

B. Security of Tenure
Security of tenure for the judges is most important in securing
their independence and impartiality. Security of tenure means that—
I) either judges are to he appointed for the whole life i.e. during
good behaviour or for a definite period extending up to e.g. 65 years
or 70 years.
Ii) during this tenure the conditions of service must be such that
they can fearlessly adrninisterjustice.
Constitution, Constitutional Law and Politics 347

In other words, the power of transfer and removal of a judge

must be a strict and difficult one to obviate the abuse of power and
its capricious operation by the executive. If the transfer or removal
of a judge is to depend upon the pleasure of a particular person or
the executive, neither independence nor impartiality can be ensured.
Because in such a situation judges will be under a constant fear of
being removed or transferred from office. if they give decisions
against the executive.

In the UK judges are guaranteed their security of tenure; they can

be removed by the King only when both the Houses pass a
resolution inducting him for corruption or moral turpitude. In the
USA judges of the Supreme Court can be removed by impeachment.
The process of impeachment is difficult in that the Ilouse of
Representatives prefers the charges and the trial is held by the
Senate.
C. Adequate Remuneration and Privileges
In order to ensure the independence and impartiality of the
judiciary it is essential, next to the permanency of office, to provide
judges with adequate remuneration and privileges Adequate
remuneration and privileges include the following three things:
Firstly, the salaries,housing facilities, allowances and other
privileges are to be such that they can easily maintain a reasonable
standard of life and they do not have to think for corruption or
bribery. Again, if judges are ill-paid, able persons will not be
attracted to this profession, for they will have no prestige in the
society.
Secondly, the conditions of salaries and other privileges must be
such that they cannot be varied to their disadvantages during the
tenure of their office. This is why in democratic countries judges are
paid their salaries and allowances from the consolidated fund and
there is no need for the approval of the parliament for these
payments every year.
Thirdly, after retirement a judge should receive pension so that
during his tenure lie need not indulge in corrupt practices and he can
lead a peaceful retired life.
348 The Judiciary in Bangladesh

How far Judiciary is Independent in Bangladesh

To know how far the judiciary in Bangladesh is independent first
of all we have to evaluate our system and provisions and to see how
far conditions for independence of judiciary have been maintained.
And in doing this it would be convenient to discuss the present
system ofjudiciar y in two broad divisions:
A. Higher Judiciary; and B. Lower Judiciary.

A. Independence of Higher Judiciary

(a) Method of Appointment

As mentioned earlier the conditions for appointment of judges in
the l-ligher Judiciary should be a healthy one so that men of keen
intellect, high legal acumen. integrity and independence of] udgment
from among the lawyers can be taken as judges. But the provisions
for appointment of judges of the Supreme Court in the present
Constitution are not healthy enough to satisfy this requirement. The
present provision for appointments is that the Chief Justice and other
judges shall be appointed by the President (Article 95). Thus the
appointment depends on the sole wish of the executive which may
create personal favouritism and political bias in the appointments.
Unchecked nomination by the executive is not accepted in a
democratic country; an objective assessment from the Chief Justice
or consultation with the judiciary is essential to ensure independence
of judiciary as has been suggested in the International Congress of
Jurist held in New Delhi in 1959.
It has, of course, to be mentioned that though there is no
constitutional requirement of consultation with the Chief Justice, a
practice of such consultation before appointing judges of the
Supreme Court has all along been followed by the President.
However, we will see that this practice of consultation has been
violated by governments in recent history of judicial appointments.

Appointment of Additional Judges

Under Article 98 the President is empowered to appoint one or
more qualified persons as additional judges for two years. But here
the objectionable point is the proviso' of the Article where it is said
that the President may appoint such an additionaljudge as a regular
Constitution, Constitutional Law and Politics 349

judge or for a further period. This is objectionable in the sense that

the power-expectation among such additional judges to get regular
judgeship may greatly hamper their discharging impartial justice.

Disabilities of the Judges

Under Article 99 a retired or removed judge may he appointed
by the president in judicial or quasi-judicial offices and mayalso he
appointed as a Minister. Deputy Minister or President which are not
regarded as profitable posts under Article 66(2). This provision is a
great hindrance to the independence of judiciary in Bangladesh.
Because as Ahmed J. said, "opening up of opportunities for'
appointment after retirement will serve as a temptation and temper
with his independence during the concluding period of his service"
The International Law Commission Report also holds the same view
that where there is any chance for the judges to be appointed in
honourable posts after their retirement or removal, impartial
judgment may not be expected from them especially where the
government itself is a party to a suit.

The ultimate consequences of Articles 95, 98 and 99 is that only

those lawyers would be appointed as judges who are the members of
the ruling party or who are likely to favour the government. There is
no healthy provision for appointment of men of keen intellect, high
legal acumen, integrity and independence of judgment from among
lawyers. This has the likelihood of resulting in low degree in judicial
decisions even though the judges are completely free after their
appointment. Because as mention by K.C. Wheare, 'the success of
judicial decisions depends as mitch upon a well-drafted Constitution
as upon the caliber of the judges themselves. "2

Consultation with the Chief Justice and Politics in the

Appointment of Judges
The Higher Judiciary of a country is seen by ordinary people not as a
necessary part of the government but as a forum ofjustice: a forum
of last hope to get redress against the governmental actions; an
Quoted by. ChoJhury. Badrul 1-laider. Lro/uuoi: of ihe Supreme ('our! of Bwiglodevh.
(1990). 11.168
Vlieare. K.C. ,tJc,c/e;-n ( 'onxIilu!ions. (1966). 11.120
350 The Judiciary in Bangladesh

image and prestige built on time-honoured undisturbed

organisational independence within the judiciary is the bastion of
this aspiration by the people. However, in the very recent history of
our higher judiciary people have seen to their dismay that the last
bastion of judicial independence is on the verge of being crumbled.
Evidence of this dismal scenario is clear from the three spheres of
appointment of judges in the higher judiciary. First, appointment of
additional judges in the High Court Division under Article 98 of the
Constitution; second, confirmation of additional judges as regular
judges after the expiry of two years under Article 95 of the
Constitution; and third, appointment of the Chief Justice under
Article 95 of the Constitution.

Some inckts attached to the above spheres will be discussed and

then the focus will be on their constitutional implication in view of
the concept ofjudicial independence.

Incident One:
In February 1994 the then BNP Government issued a Gazette
Notification with a list of 9 judges to be appointed as Additional
Judges in the High Court Division. The arrangement of these
appointments was made without consulting the Chief Justice. It was
revealed on the same day when the Chief Justice in inaugurating the
lawyers conference of Bangladesh Bar Council stated that he was
'Mr. Nobody'. This obviously meant that the appointments were
made without consulting him. The following day the Supreme Court
Bar Association unanimously condemned the action of the President
and demanded the cancellation of the notification. In another
resolution the Bar requested the Chief Justice not to administer oath
to newly appointed judges. The Bar also decided not to accord any
felicitation to any of the newly appointed judges. This decision of
the Bar was communicated to the Attorney- General. In view of this
strong resistance from the Bar, the Government had to cancel the
notification and a fresh appointment was made after consultation
with the Chief Justice.

Incident Two:
In 2001 before the AL Government ended its term, it appointed
some additional Judges in the High Court Division on two
Constitution. Constitutional Law and Politics 351

occasions. In the first insncc in February 2001 the government

appointed 9 Additional High Court Judges under Article 98 of the
Constitution. After two years in February 2003 the confirmation of
these appointments as regular judges came to be considered by the
BNP led coalition government. However, the government did not
confirm the services of 7 additional judges out of 9. It is alleged that
the Chief Justice recommended for confirmation in favour of at least
5 of them, but the government ignored the suggestions in a break
with constitutional convention.

Incident Three:
In the second instance in July 1. 2001 the AL Government
appointed 9 Additional High Court Judges. On July 2, 2003 the BNP
Government did not confirm the services of 4 of these 9 additional
judges. It is contended that the Chief Justice had recommended in
favour of all of them.

It is to be mentioned that following the non-confirmation of 7

Judges out of 9 additional judges in February 2003 three Writ
Petitions were moved to the High Court Division; a rule was issued
on May 05, 2003 on the Government asking it to explain why non-
appointment of additional judges should not be declared illegal. The
Appellate Division has, however, stayed the proceedings of the writs
till September 2003 following a Government petition.

In view of the above three incidents, it may now be turned to the

constitutional implications of appointment procedure. Is the
President constitutionally bound to appoint and confirm judges in
consultation with the Chief Justice? The plain and blunt answer
would be No'. as nowhere in Articles 95 or 98 is there any
reference to the concept of 'consultation with the Chief Justice'.
True is also the fact that under Article 48(3) the President has to
perform every functions in accordance with the advice of the Prime
Minister except that of appointing the Prime Minister and the Chief
Justice. Given this blunt wording in three Articles of the
Constitution one should not forget the spirit and philosophy of the
Constitution: the true and historic background of those wording in
the Articles: the significance of the oath of the offices of the Chief
Justice. the President and the Prime Minister.
352 The Judiciary in Bangladesh

In the original Constitution of 1972 in both Articles 95 and 98

there were provisions for consultation with the Chief Justice. By the
01 Amendment this provision of consultation with the Chief
Justice S was withdrawn. It is to be noted that though the provision of
the consultation with the Chief Justice has been wiped out by the 4th
4
Amendment, that very th Amendment has not received any respect
even from military dictators; ignoring the mandate of that
Amendment and upholding the spirit of the Constitution
consultation with the Chief Justice in question of appointment of
judges has all along been followed by every subsequent government
like a binding constitutional convention. It has also been settled in
many constitutional decisions both in India and Bangladesh that
mere literal interpretation would be outweighed by the purposive
construction in view of the philosophy or basic structure of the
Constitution. Both the President, the Chief Justice and the Prime
Minister take their oath of offices in the form that they "will
preserve, protect and defend the Constitution." This wording of
'preserve', 'protect' and defend' have far greater interpretative
value in view of the philosophy of the Constitution as enshrined in
its Preamble than they are understood in common parlance. "Method
of appointment of judges in the higher judiciary is so fundamental to
the independence of judiciary that any attempt on the part of the
executive to exclude the Supreme Court or the Chief Justice from
the process of selection and appointment would be disastrous not
only to the independence of judiciary but also to the entire
democracy. 1 " As has already been mentioned earlier, the Supreme
Court is considered by ordinary people the last hope of justice and
they have a legitimate expectation to see it impartial both
conceptually and functionally; they never expect it to be a political
forum. The first incident in 1994 as has been mentioned above
paved the way for politicisation of the higher judiciary for the first
time though it did not work. However, the second and third incidents
nakedly violated the constitutional convention and it is widely
contended that this bad practice by the Government in confirming
the services of the judges ignoring the advice of the Chief Justice has
already politicised the judiciary. In the case of an advocate of the
Supreme Court to be selected as a judge, the Chief Justice is better
placed than anyone else to assess the competence, character and

Md. Abdur Rashid. Challenge to the /iic/ependeiCC ofJudicicirv. 46 I)LR (1994)

Constitution, Constitutional Law and Politics 353

integrity of such advocate. When the court prepares a list or the

government consults Chief Justice he, who is closely associated with
the performance of the Bar, will select the name of those lawyers
who are men of high legal acumen, integrity, independence ofjustice
etc. Such a method of appointment is conducive to the development
of the standard of judicial decisions on the one hand and on the other
hand, is best able to ensure impartial justice in the country.
Likewise, in the case of confirmation of the service of an Additional
Judge of the 1-ugh Court Division it is the Chief Justice who is better
placed to determine by way of examining, inter a/ia, some
judgments of the Additional Judges whether their service should be
confirmed or not. To overrule or ignore the views of the Chief
Justice would subvert the independence of the judiciary, particularly
the Higher Judiciary where litigants set their footsteps as a last resort
of legal remedies. Thus for the greater interest of the administration
of justice and to save the prestige of the Supreme Court as the
highest seat of the judiciary this practice of the government should
be stopped from now.

Politics of Superseding and the Appointment of the Chief Justice

The Constitution provides that the President may appoint the
Chief Justice on his own; he does not need to consult the Prime
Minister or anyone. The time-honoured practice has been to appoint
the senior-most judge in the Appellate Division as the Chief Justice
though in recent history of the Higher Judiciary this practice has
23 id June 2003 Justice K.M. Hasan was given the
been violated. On
appointment as the Chief Justice on retirement of Chief Justice
Mainur Reza Chowdhury. However, Mr. Justice Hasan was given
this appointment superseding two other senior judges in the
Appellate Division. This is unprecedented that the President puts a
judge ahead of two of his superior in the chain of the Chief Justice.
The reason behind this superseding is political which should not
creep into judicial appointments. The BNP led coalition government
contends that Justice Hasan was the senior-most judge in the High
Court Division when Mr. Ruhul Amin and Justice Faziul Karim
superseded him to be appointed to the Appellate Division during the
AL Government.

13
354 The Judiciary in Bangladesh

What is the position in Britain and India on this point? In

question of appointment of Chief Justice a trend is obvious in most
countries including some democratically developed countries like
Britain. The appointment of the Chief Justice is left mostly in the
hand of the executive in an unfettered way. However, no complaint
as to partiality in this appointment has ever been heard in developed
countries. For example, Lord Chancellor is appointed by the Queen.
She appoints him in accordance with the advice of the British Prime
Ministe r. Lord Chancellor is at once the head of the Judiciary in
Britain, head of the House of Lords and an important member of the
cabinet. An apprehension may, therefore, arise in question of his
appointment that Prime Minister will advise the King to appoint
such a person who is likely to act in favour of the government. But
the truth is that no such complaint was ever raised in Britain
regarding this important appointment.

However, the question of appointment to this post in some

countries is sometimes criticised for partiality on the part of the
government. It is sometimes the case that government, without
considering the question of seniority and by-passing a senior-most
judge appoints a judge as the Chief Justice in the highest court who
is likely to favour the government. This trend has, on the one hand,
invariably resulted in resignation of senior-most judges superseded
depriving thereby the country from the services of able and
experienced judges who could make a significant contribution to the
cause of law and justices and on the other hand, brin g s political
consideration in appointment of new judges which gradually
undermines the independence and impartiality of judges lowering
the prestige and dignity of the highest court.
Over the years a convention was developed in India that the
senior-most puisne judge would become the Chief Justice whenever
the vacancy arose. But this convention was set aside first in 1973
when C.J. Sikri retired. Mr. Justice A.N. Roy was appointed the
Chief Justice in preference to three senior judges - Justice Shelat,
Justice A.N. Grover' and Justice K.S.H Hedge who in protest
resigned. Again, in 1977 on the retirement of Justice A.N. Roy,
Justice M.H. Beg was appointed the Chief Justice by-passing the
senior-most judge Justice H.R. Khanna who in protest resigned.
Constitution, Constitutional Law and Politics 355

It is, of course, argued that a Chief Justice should not only be an

able and experienced judge but also a competent administrator and,
therefore, succession to this office should not be regulated by mere
seniority. However, it may again be argued conversely that when the
government has discretion to appoint the Chief Justice, there is no
guarantee that the best man for the post will always be appointed and
that consideration other than merit will not come into play.
Moreover, the rule of seniority, though a mechanical rule, is beyond
controversy and is better able to maintain the independence and
impartiality of the judiciary. The three judges and then Justice
Khanna of India as mentioned earlier were superseded not because
of consideration of merit but because they had decided two
important cases (Fundamental Rights case and Habeas Corpus case)
against the government.

Turning back to Bangladesh scenario an incident during the

Fr-had regime may now he recalled. An attempt was made by the
President Ershad to supersede Justice Sahabuddin Ahmed when the
then Chief Justice B. H. Chowdhury retired. However, under the
continuous boycotting of the courts by the lawyers Ershad was
bound to appoint Sahabuddin Ahmed as the Chief Justice of
Bangladesh. The recent appointment of Justice K. M. Hasan as the
Chief Justice of Bangladesh has already signaled the politics of
superseding in the appointment of the Chief Justice which bear a
likelihood of casting far reaching had impact on this honorable post.
It is fortunate that the superseded two senior judges have accepted
this. The Government also contends that by appointing Mr. 1-lasan as
the Chief Justice has been done to him as he was superseded in the
High Court Division. if this be the rationale, let it be an exception;
an exception once and for all in view of the fact that the image and
prestige of the whole judicial administration is attached to this
honorable post.

So the method of appointment is not conducive to the conditions

of constitutionalism in Bangladesh. To make the appointment
procedure a sound one the provisions of original Article 95 of the
Constitution as it stood on 4th November, 1972 should be restored.
356 The Judiciary in Bangladesh

Because iii the original Article there were provisions, as to the

appointment Of judges, for consultation with the Chief Justice. Also
the provisions for additional judges in Article 98 and disabilities of
judges in Article 99 should be restored to those of respective
Articles of the original Constitution. Because they provided for, in
respect of appointment of additional judges, the provisions of
consultation with the Chief Justice.

Appointment of the Supreme Court Judges by Supreme

Judicial Commission:
The military baked caretaker government headed by Dr.
Fakhruddin Ahmed passed an ordinance in 2008 (Supreme Judicial
Commission Ordinance, 2008) to pave the way for appointment of
Supreme Court Judge. Although it is suggested that this law has been
passed to make appoint of judges in the apex court more rule-oriented
and influence free, the mechanism provided in the law does not seem
so strong. The Ordinance establishes a Commission consisting nine
members. They are
(i) The Chief justice as the Chairman of the Commission
(ii) Minister for the Law, Justice and Parliamentary Affairs
(iii) Senior-most judgesof the Appellate Division
(iv) Second senior-most Judge in the Appellate Division
(v) Attorney-General
(vi) An MP selected by the leader of the parliament
(vii) An MP selected by the leader of the opposition in parliament
(viii) President of the Bangladesh Supreme Court Bar Association
(ix) Secretary , Ministry of Law, Justice and Parliamentary Affairs.

Sub-section 4(4) provides that the quorum of the commission will

be five and sub-section 4(7) provides that the decision will be taken by
votes of majority of the present members. It is thus evident from the
composition of the commission that there is still possibility that fair
selection of judges may not be ensured. This is because first, out of
nine members four members are directly from the executive branch of
the government and if the president of the Supreme Court liar
Association is one elected from the ruling party supporters, then the
majority will be executive dominated and in such a situation objective
Constitution, Constitutional Law and Politics 357

selection of judges for the apex court may he hampered. Secondly, the
status of the secretary of Law Ministry is much lower compared to an
would-be judge of the apex court and in appointing judges in the
Supreme Court the law secretary should not have any role. Third, not
only for the sake of the concept of separation of power but also for
ensuring fair and proper selection of judges in the Supreme Court the
Minister of Law, justice and Parliamentary Affairs should not be a
member of the appointing bod y . Fourth, secretarial assistance for the
Commission will be provided by the secretariat of Ministr y of Law,
Justice and Parliamentar y Affairs. This is also not conducive to fair
selection of a judge for the Supreme Court as the Commission should
have its own secretariat or the Chief Justice's department ma y provide
secretarial assistance. Fifth, the scheme seems to be also
unconstitutional. This is because of the provision in Article 48(3) of
the Constitution which provides that "in the exercise of all his
functions . ....... the President shall act in accordance with the advice of
the Prime Minister." However, the ordinance now compels the
President to act in accordance with the advice of the Supreme judicial
Commission which seems run counter to the express provision of the
constitution. Although the law has been effective and the Commission
has been formed, it remains to be seen how effective the commission
makes it way forward.

How to Make Appointments more Rule-oriented

Muhammed Samsul 1-loquc, an advocate of the Appellate Division
of the Supreme Court wrote in Journal 23 and 25 of 54 DLR that to
maintain the sanctity of equality scheme of the Constitution and the
oaths and affirmation of the high dignitaries of the country and
directions in Art. 95(2)(c) there must be a law, rules or regulations,
having consistency with the consultation, prescribing in detail the
qualifications and disqualifications of a judge of the Supreme Court
making those similarly applicable in case of a deputy Attorney- General
and above. The learned advocate also suggested some methods of
making the appointment more effective which I feel obliged to quote
here:
1. An advocate shall be considered to have completed 5 years
practice in the High Court Division if he has dealt with certain
specified number of cases of different nature in the High Court
358 The Judiciary in Bangladesh

Division and appeared in at least 25 cases with a learned senior

in the I ugh Court Division.
2. A n advocate shall be considered to have completed 10 years
practice in the I ugh Court Division if he has independently
dealt with at least 25 cases of at least 5 nature (such as civil
appeal, criminal appeal, civil revision, criminal revision, writ of
various nature, income tax, cnrnpany etc) in the High Court
Division being regular in the profession of law.

3. An advocate shall not be qualified to be a judge in the High

Court Division unless he is enrolled as an advocate in the
Appellate Division and has dealt with certain specified number
of cases independently in the Appellate Division.

For appointment of Attorney-General and Additional Attorney-

General prefernce shall be given to the Senior Advocates enrolled in
the Appellate Division.

(b) Security of Tenure

As to the security of tenure it has been provided in Article 06 that
a judge shall hold office till he attains the age of 65. During this tenure
he can be removed only on two grounds- physical or mental incapacity
to perform the function of his office or gross misconduct. But on
these two grounds a judge can be removed by the executive only when
the Supreme Judicial Council consisting of the Chief Justice and the
two next senior judges, inquiring into the grounds, makes an
affiL-mative report thereon to the President. The condition of security
Of tenure is, therefore, a healthy one, for during the tenure a judge in
strongly protected from an y harassment or whimsical removal by the
executive. The provision of Supreme Judicial Council I as provided in

Backgrounds of the Provision of Supreme Judicial Council : There was no provision

o Supreme Judicial Council in the original Constitution of 1972. In the original
constitution it was provided that a judge could he removed on the ground of
misbehaviour or incapacity by an order of the president only when such order was
supported by a majority of not less than two-thirds of the total number of members of
the parliament. This provision of the original constitution was a sound and health y one
because a judge could not he removed except by adopting the constitution amending
process which is very difficult to mastermind.
Constitution, Constitutional Law and Politics 359

article 96 is harmonious with the suggestion given in the International

Congress of Jurists held in New Delhi in 1959 when it was suggested
that "the grounds for removal of judges should be before a body of
judicial character assuring at least the same safeguards to the judges as
would be accorded to an accused person in a criminal trial."
(c) Adequate Remuneration & Privileges
The remuneration given to the judges of the Supreme Court is a
handsome one in our society. And their salaries and pensions arc
charged on the consolidated fund and not subject to vote in the
parliament. And according to article 147 the remuneration, privileges
and other terms and conditions of service of the judges of the Supreme
Court cannot be varied to their disadvantages. So conditions for
adequate remuneration and privileges of the judges are conducive to
the conditions of constitutionalism.

Accountability of the Higher Judiciary

The independence of judiciary does not mean that the absence of
responsibility for the action of a judge. Judicial independence without
judicial accountability may generate both abuse and misuse and hence
judicial independence involves the concept of judicial accountability of
the judges. Agreeing fully with the views expressed by the Chief justice
Latifur Rahman in his extra-judicial capacity this author quotes him:
The original Constitution Article 96(2) provided that the parliament
by not less than two-thirds of the total number of member of
parliament can remove a judge on the grounds of proved
misbehavour or incapacity. The removal procedure in most of the
countries remain with the parliament. After amendment of Article
96(2) this power has been given to the Supreme Judicial Council
which consists of the Chief Justice and two next senior judges of the
Supreme Court of Bangladesh. AS the Constitution reposed this
power in the Judges themselves the obligation and responsibility lies
on them to formulate a Code of Conduct under the Constitution to
be strictly followed for proper functioning of the superior courts. It

But during the first martial law regime the parliament was dissolved on 8th November.
1976. A question was, thercfbre, raised as to how ajudge could, if neceded, he removed
when parliament would stand dissolved or not in existence. Thinking for such an
unforseen situation Prcsiden Ziaur Rahman by Second Proclamation (1 Oth Amendment)
Order substituted the provistion of Supreme Judicial Council for the earlier one.
360 The Judiciary in Bangladesh

may be mentioned here that the Supreme Judicial Council never sat
in the past nor did an y deliberation take place. A Code of Conduct
was formulated in 1977. In view of changing social, economic and
political condition another new Code of Conduct was formulated on
7' May 2000 by Supreme Judicial Council and it was circulated to all
the judges of the Appellate Division and the High Court Division to
adhere to the said Code of Conduct for proper meaningful
functioning of the judiciary by guaranteeing accountability so that
people can repose faith, trust and confidence in the Iligher Judiciary
of Bangladesh.
Article 96(4) authorises the Supreme Court to prcscrive a Code of
Conduct for the judges in both the Divisions. Though Article 96
provides for removal of judges from their posts, the idea of
accountability has nothing to do with his removal from his
office.Judicial accountability means accountability to the Code of
Conduct formulated under the Constitution.
The courts are acting for the people who have reposed confidence in
them. Lord Denning said, "justice is rooted in confidence and
confidence is destroyed when right-minded go away thinking that the
judge is biased."
The accountability of the higher judiciary is of prime importance as
because the judges of the constitutional court has taken oath to
defend, protect and preserve the Constitution of Bangladesh. The
Supreme Judicial Council which consists of the senior most judges
themselves have a greater responsibility to see, that the judges of the
superior court remain committed for the Code of Conduct and
thereby remain accountable to the Constitution 1.

The Constitution has envisaged certain basic and fundamental rights

for the people and made the judiciary the guardian of those rights. In
that context it has been rightly said that judges of the higher judiciary
without public accountabilit y may endenger democracy.

B. Independence of Lower Judiciary

The larger portion of our population is directly connected with
the litigation in the courts of the subordinate judiciary. The

Cl. Lati 11w Rahrnan. Judicial Independence and .4ccountability ofJudges and the
Constitution of Bangladesh, 20 RLD (2000). journal 85
Constitution, Constitutional Law and Politics 361

subordinate judiciary is the base and foundation of the judiciary.

However, unfortunately since our independence the subordinate
judiciary lacked independence and hazardous problems beset with it
where the mass of litigants come with a hope to get justice. In line
with the judgment of the Appellate Division in Masder 1-Josain case
the caretaker government headed by Dr. Fakhruddin Ahenid finally
completed the task of separation Of judiciary from the clutches olthe
executive on 1st November, 2007. However, the history of the
separation of judiciary from executive seems relevant for students
and researchers of law and this is why the historical part of judiciary
separation is given below. The lower courts comprises the following
two types of courts:
a. Magistrates' Courts; and
b. Other Lower Courts.

Constitution alisation of Subordinate Courts and Controversy

with their Independence and Separation
Part VI of the Constitution of Bangladesh provides for the
'Judiciary' of which Chapter II deals with 'subordinate Courts'. There
are four Articles i.e., 114, 115, 116, 116A dealing with constitutional
safeguards of the subordinate cou:ts. Article 115 deals with the
appointment in the subordinate judiciary. It states that appointments
of persons to offices in the judicial services or as magistrates exercising
judicial functions shall be made by the President in accordance with
rules made by him in that behalf. Thus the executive is the absolute
maker of the judges and judicial officers in the subordinate judiciary as
well as in the magistracy. In the original Constitution there was
provision of consultation with the Supreme Court which was deleted
by the 41 Amendment. Thus no objective assessment is possible in the
appointment of judges in the subordinate judiciary. As to the control
and discipline of subordinate courts Article 116 states that this shall be
exercised by the President in consultation with the Supreme Court.
However, this consultation with the Supreme Court has never been
institutionalised and there are practical problems in doing this. This is
because, first, the appointment was done absolutely by the executive;
second, all logistics and staff of the subordinate courts were provided
and regulated by the Ministry of Law; third, neither the Supreme Court
4
362 The Judiciary in Bangladesh

nor subordinate courts had any power to regulate the finance to

moderate and devise its plan and functions; fourth, though there is
Public Servants (Discipline and Appeal) Rules 1985 prescribing
different modes of punishment of a judicial officer, the Supreme Court
has not yet made any rule in this regard to be followed b y the executive
in question of control and discipline of judicial officers; Fifth, every
power of posting, promotion, grant of leaves, and determination of pay
scale etc were determined by the executive only. The biggest problem
had been with the magistrates exercising judicial functions. Three tires
of Magistrates' Courts, i.e..rd Class, 2nd Class and 1st Class
Magistrates' Courts- all these were the courts of first instance for
criminal cases. Given that criminal cases filed in a year are far greater
in number compared to the number of civil cases, these criminal courts
have a great potential in shaping the base of our legal system.
However, unfortunately for reasons, principally, of some legal
shortcomings these courts were playing negative role at a greater extent
frustrating the very purpose of criminal 'Justice. The shortcomings were
as follows:

i) All Magistrates were linked with the executive functionaries.

Magistrates were discharging dual functions j udicial and executive.
They were controlled by the Ministry of Establishment, the Ministry
of Home Affairs and also the Ministry of Law, Justice and
Parliamentary Affairs. In discharging their judicial functions they
were very often dictated and influenced by the executive. As a result,
they could not independently discharge their judicial functions. It is
impossible For a judge to take a wholl y independent view of the case
he is try ing, if he feels lumsclf to an y extent interested in or
responsible for the success of one side or the other. It is c]ually
impossible for him to take an independent view of the case before
him if he knows that his posting, promotion and prospects generally
depend on his pleasing the executive hand.

ii) Magistrates discharging judicial functions were never appointed from

persons with legal discipline. It is sometimes impossible to expect
justice from a person with no institutional le gal education. Being first
class executive officers Magistrates often did In j ustice. This is mostly
the case because, firstl y , the y took the opportunity of illiterac y and
Constitution, Constitutional Law and Politics 363

ignorance of law of mass indigent litigants and secondly, there was

inherent lack of administrative check and balance in Magistracy and
thirdly, thc' were not under the unfettered control of the Supreme
Court.

in) Magistrates are not j udicial officers and arc not under any
administrative control of the District Judges or the Supreme Court.
The main crux of the problem of separation of judiciary lay in the
Magistrates' courts. The dual function of magistrates and also the
dependency of the lower judiciary upon the executive is a legacy of the
British rule. During the very British days there was a demand for the
separation of judiciary from the executive. The British administration
did not make this separation thinking that separation might go against
their colonial interest. After independence in 1947 the first
Constitution in united Pakistan was adopted in 1956 which did not
provide for any provision regarding 'subordinate courts' or
'magistracy'; these were to be regulated by the Code of Civil Procedure
and the Code of Criminal Procedure. In 1957 the East Pakistan
Provincial Assembly passed the Code of Criminal Procedure (Ea:t
Pakistan Amendment) Act 1957 (No. 36) which dealt with separation.
1-lowever, this Act was never given effective. In 1958 the Pakistan Law
Commission recommended to bring the judicial magistrates under the
control of the [-ugh Court. In 1967 the Law Commission again
recommended to give effect to the Cr. P. C Act 1957 (No. 36) though
nothing was done until 1972.

Drafting the Constitution and the Question of Separation of

Judiciary
In the new constitution adopted in 1972 it was provided in article
22 that "the state shall ensure the separation of judiciary from the
executive organ". Article 115 provided further that "Appointments of
persons to offices in the judicial service or as magistrates exercising
judicial functions shall he made by the President in accordance with
the rules made by him in that behalf." Compared to earlier initiatives
what differences do we see in the constitution of 1972? We see that the
matter of subordinate judiciary including the magistracy has been given
364 The Judiciary in Bangladesh

place in the Constitution unlike the Constitutions of Pakistan and

India.

Though it is sometimes argued that the original Constitution of

Bangladesh ensured full independence of the judiciary, the fact is that
it has ensured the independence of the higher judiciary but not of the
lower judiciary. It is the Magistrates' courts where the largest section of
our population set their footsteps to get justice. While the Constitution
was being drafted Dr. Kamal Hossain, the Chairman of the Drafting
Committee and Barrister Amir-L3l Islam, a member-these two persons
were most famous legal experts and they pla yed the key role in
drafting. In 1997 while writing this book this author asked them some
questions-Was there any problem to provide for separation of judiciary
at first hand? What principle prompted the Constitution makers to
retain the mixed judicial function with the executive? What was the
problem in using the term 'judicial magistrates' in place of the term
'magistrates exercising judicial function'? Dr. Kamal Hossain just by-
passed all the questions by saying that b y the term 'magistrates
exercising judicial function' the constitution makers wanted to mean
judicial type of magistrates and after the Constitution was given effect
everybody took this term for judicial type of magistrates but the
government did not separate them. In response to the first question
Barrister Amir-Ul Islam told that at the first hand, provision was not
incorporated to separate Magistrate's courts from the executive
considering the question of departmental flexibility; if provisions were
made for separating magistrate's courts, a separate department would
have to be created which would certainly claim a huge amount of
money from the public purse. Mr. Islam also told that actually by the
term 'magistrates exercising judicial function' the Constitution makers
wanted to mean a separate type of magistrates like judicial magistrates
and to that end, as he went on to say, provisions were made in article
137 for one or more Public Service Commissions and also provisions
were made in article 115(1)(b) (of the original constitution) for
consultation with the appropriate Public Service Commission and the
Supreme Court. So the Constitution makers, as he insisted, intended a
separate type of magistrates' courts.
Constitution, Constitutional Law and Politics 365

Law Commission's Recommendation

It is important to mention here that the Law Commission in its
recommendation on the issue of separation of judiciary has reported
that there are three main aspects of the concept of 'separation of
judiciary' from the executive namely, constitutional aspect, statutory
aspect and systematised aspect. As to the materialisation of the
constitutional aspect of separation of judiciary the Commission has
suggested to introduce the provisions of the original constitution of
1972 so far as they relate to the judiciary.

Now the questions are-

1. If the constitutional aspect ofeparation of judiciary so far as it
relates to the Magistrates' courts was fulfilled in the original
constitution can the Law Commission or Constitution makers
now say that under the Criminal Procedure Code (statutory
law) the empowerment of judicial function over the executive
officers (Magistrates) was (during 1972-75) or is now
unconstitutional?

2. If the original Constitution ensured the constitutional aspect of

'separation of judiciary' from the executive, was it necessary or
convincing to say by that very constitution in article 22 that
"the state shall ensure the separation of judiciar y from the
executive organ"?

Problem lies with the wording 'magistrates exercising judicial

function'. Because if the government now under the authorit y of a law
declares some medical surgeons as magistrates and gives them judicial
functions to discharge, the y will come under the constitutional
category of 'magistrates exercising judicial functions' and in that case
they will be under twin control- 'rope in the wrist- like control by the
Supreme Court so far as they will discharge judicial functions and 'rope
in the neck'- like control b y the Ministry of I lcalth and Establishment.
In such a case to which one will the lean? Surel y to the latter where
they will have their promotion and tictual1v the will give less
366 The Judiciary in Bangladesh

emphasis in discharging judicial functions hovsocvcr powerful control

the Supreme Court may exercise over them. I asked a member of the
Law Commission in 1998- "Will it be possible for magistrates under
such as twin control to discharge judicial functions independently?" I-Ic
answered, "such a situation will not exist after 20 or 23 years. We
expect that after 20-25 years all Magistrates Courts will be separated".
How can the Law Commission be sure that after 20-25 years this
situation will not exist?

Will the restoration of the original Constitution ensure

separation of the Magistrates Courts?
Of course, the term 'magistrates exercising judicial functions' in
the Constitution is not at all a bar for the government to introduce by
law a dep ment of separate 'judicial magistrates' and that can be done
even in the absence of an y such constitutional provision. This is
because the separation of judiciary is largely a statutory matter. Had the
term 'magistrates exercising judicial function' not been at all used in the
Constitution, the perspective of magistrate's courts would have been
completely different; a matter completely out of constitutional
consideration. Generall y subordinate courts are not counted as a
subjcct matter of constitutional law. This is why most of the
democratic constitutions do not even mention anything about
subordinate courts. The Pakistan Constitutions of 1956, of 1962 and
even the present Constitution does not mention anything about
subordinate courts; everything of subordinate courts is dealt with in
statutory law. It is also a recognised principle of common law
jurisprudence that in common law countries judicial system is an
integrated system, and hence all courts and tribunals within the country
are subordinate me Court toif anything
the otherwise
Supre is not
mentioned in the constitution.

Again, it is also a recent trend of constitutional jurisprudence in

some of the common law countries that their constitutions specify
some conditions or standards as to subordinate courts so that the
executive cannot transgress those conditions or transform some of the
subordinate courts into instruments of oppression rather than of
Constitution. Constitutional Law and Politics 367

justice. If this is the objective, then Constitution makers seems to have

done a wrong by using the term 'magistrates exercising judicial
functions'. B y using this term they have, on the one hand, provoked or
allowed the executive to keep some of the lower courts mixed with the
executive; and on the other hand, ensured colonial type of
independence of magistrate's courts. Rather than using this term the
constitution makers could have made some transitional provisions.

Of course, someone might argue here that the executive

magistrates have been discharging judicial functions commencing from
the British rule and this situation continued even during the whole
Pakistan period and it was not possible for the constitution-makers to
insert provisions for separating tbe at a stroke of a pen. Against such
an argument my question is— Why did the Constitution makers take it
as their headache to bring the matter of magistrates' courts in the
Constitution? Why was not an explanatory statement given in the
Constituent Assembly concerning the thinking of the Constitution
makers about 'magistrates exercising judicial functions'? The
Constitution of Pakistan of 1956 provided that "the state shall separate
judiciary from the Executive as soon as Practicable". But the
Constitution makers in Bangladesh did not use the term 'as soon as'
giving virtually a leeway to the executive to hang the matter of
separation of Magistrates' courts from the executive. Thus it is clear
that the restoration of the provisions of the original constitution will
fulfill neither the constitutional aspect of separation of judiciary nor of
its independence fully. And this is largely the view of the Appellate
Division of the Supreme Court in much-talked Ma.cder Iio.c.rain case
when it reversed the decision of the Iligh Court Division on the point
that to implement the separation of judiciary no constitutional
amendment Would be required.

Five-point Directions in the Masder Hossain Case

The .tasder 1-!o.c.cajn Y case, popularly known as the separation of the
judiciary case was finall y decided by the Appellate Division of the

52 DLR 82
368 The Judiciary in Bangladesh

Supreme Court on December 2, 1999 with 12-point directives to the

government. The judgment was given against the background of
intervention by the executive in the matter of appointment,
promotion, pay-scale determination, transfer, granting leave.and other
benefits of the personnel in the subordinate judiciary. It has been
typical to report that in Masder 1-lossath case the Supreme Court gave 12
directions. In fact these 12 points in the operative part of the judgment
are not all directions in true sense of the term. Of these 12 points five
are in the nature of directions and seven are in the nature of
declaration. The five directions are as follows:
(1) The government is to take necessary steps forthwith for the
President to make Rules under Article 115 to implement its
provisions; nomenclature of the judicial service shall be
designated as the Judicial Service of Bangladesh; either by
legislation of rules or order a Judicial Service Commission is
to be established forthwith with the majority of members
from the Senior Judiciary of the Supreme Court and the
subordinate courts for recruitment to the judicial service;

(2) Under Article 133 law or rules relating to posting, promotion,

grant of leave, discipline, pay, allowance and other terms and
conditions of service consistent with Article 116 and 116A
shall be enacted separately for the judicial service;

(3) Government is directed to establish a separate Judicial Pay

Commission forthwith as part of the Rules to be framed
under Article 115;

(4) The conditions of judicial independence in Article 116A

namely , (i) security of tenure (ii) security of salary and other
benefits and pension and (iii) Constitutional independence
from the parliament and the executive shall be secured in the
law or Rules made under Article 113 or in the executive
orders having the force of Rules;

(5) 111c executive government shall not require the Supreme

Court of Bangladesh to seek their approval to incur any
Constitution, Constitutional Law and Politics 369

expenditure on any items from the fund, allocated to the

Supreme Court.

As evident from the above five directions in the judgment the

executive has been ordered to undertake the task of overhauling the
whole lower judiciary with two big commissions- Jt'dicial Service
Commission and Judicial Pay Commission which is certainly a matter
of policy rather than a dispute. However, there are strong evidences to
show that our Supreme Court has dealt with policy matter under the
paradigm of 'judicial review' or the doctrine of 'basic structure' of the
Constitution as we saw it in the celebrated 811 Amendment Case and
this is not something unsupported by the constitutional arrangement.
It is true that except appointing the Prime Minister and the Chief
Justice the President has to exercise ever y function in consultation with
the Prime Minister. However, a harmonious construction of articles
114, 115, 116 and 116A of the Constitution will give a necessary idea
that in the matter of subordinate judiciar y the policy matter has not
been left to the sweet will of the parliament or the President alone; the
executive has to exercise its power in consultation with the Supreme
Court in this sphere. Under article 115 appointments in the
subordinate judiciary are to be made as per rules made by the
President; article 116 envisages that control and discipline of the
subordinate judiciary have to be exercised in consultation with the
Supreme Court; and article 116A envisages the independence of the
judicial officials and magistrates. Given this integrated scheme as
designated in these articles, if the Parliatñent or the President attempts
to make law to separate judiciary without involvement of the Supreme
Court, that law will certainly come under judicial attack. The task of
separation of lower judiciary is thus a shared responsibility of the
executive, legislative and judiciary as envisaged in articles 114 - 116A
of the Constitution and, therefore, the government cannot claim it as a
sole executive or legislative policy prerogative. The best course for the
government, therefore, would be to implement the judgment of die

24
370 The Judiciary in Bangladesh

Masdcr Hossain case rather than flouting it on the ground of policy

matter or public demand1.

Magistrates' Courts finally separated

In view of the land mark judicial decision by the Appellate
Division in Maser Hossain case back in 1999 the Caretaker Government
headed by Dr. Fakhruddin Ahmed amended the Criminal Procedure
Code.. 1898 in November, 2007 and along with these changes the
lower judiciary was separated from the clutches of the executive.
Although the term 'executive magistrate' still exist in the Code of
Criminal Procedure, 1898, executive magistrates are no longer vested
with any judicial functions; their functions are administrative in nature.
However, it is to be noted that by the Mobile Court Ordinance, 2007
(Ordinance No. 31 of 2007) some judicial powers have been given to
the executive magistrates. After November 1, 2007 the basic laws ,with
regard to the separation of judiciary and newly costimted Judicial
Service Commission are as follows:
(1) Bangladesh Judicial Service Commission Rules, 2007.
(2) Bangladesh Judicial Service Commission Pay-Commission
Rules, 2007.
(3) Bangladesh Judicial Service (Service, Constitution,
Appointment to the service, Temporary dismissal and
Removal) Rules, 2007.
(4) Bangladesh judicial Service Commission (Posting, promotion,
grant of leave, control, discipline and other conditions of
service) Rules, 2007.
(5) Code of Criminal Procedure, 1898 (Amendment) Ordinance,
2007.
(6) Mobile Court Ordinance, 20071

For details see author's article on "Masder 1-lossain Case: 1-low long will it be a
matter of pull and haul?" published in the daily Independent dated 29th August,
2003.
I
All these laws and rules are available in the appendix of the author's
book Legal System of Bangladesh.
Constitution, Constitutional Law and Politics 371

b. Other Lower Courts

Assistant Judges, Sub-Judges, District and Additional District
Judges comprise the lower courts other than the Magistrates' Courts. It
is sometimes contended that these courts are better independent as
Article 116 of the Constitution stipulates:
The control (including the power of posting, promotion and grant
of leave) and discipline of persons employed in the judicial service and
magistrates exercising judicial functions shall rest in the President and
shall be exercised by him in consultation with the Supreme Court.

Though there is provision for consultation with the Supreme

Court, the reality is little different. Because it is frequently heard that in
many cases all acts of posting, promotion, grant of leave etc. are done
by the Ministry of Law, Justice and Parliamentary Affairs and
sometimes they do it without any approval of the Supreme Court. The
prior approval of the Supreme Court is a mandatory one and certainly
the Ministry has to obtain the approval but the Ministry obtains it later
on and in between some particular judges or a judge is harassed whom
the Ministry has intention to harass. Such type of harassment is a great
hindrance to the way of the judges to discharge impartial justice. They
sometimes lose heart. Sometimes the Ministry illegally detains the file
of promotion or grant of leave. It is also heard that frequently judges
are threatened over the telephone. So what is needed urgently is to
submit all powers of controlling judges including their salaries to the
unfettered hand of the Supreme Court. If the whole control is given to
the Supreme Court, it will certainly ensure the collective as well as
individual independence of the judges. To that end what should be
done is that Article 116 of the Constitution of Bangladesh should be
amended to the following effect:
"The control (including the power of posting, promotion and
grants of leave) and discipline of persons employed in the judicial
service and Judicial Magistrates shall vest in the Supreme Court."

Accountability of the Subordinate Judiciary:

Agreeing fully with the views expressed by the Chief Justice Latifur
Rahman in his extra-judicial capacity this author quotes him:
Public Servants (Discipline and Appeal) Rules 1985 prescribes
different modes of punishment of a judicial officer, from censure to
372 The Judiciary in Bangladesh

dismissal on grounds of misconduct. This is in view of the method

of removal of subordinate judge and is not connected with his
judicial accountability. With regard to the accountability of the judges
of the subordinate courts and tribunals Article 109 of the
Constitution of Bangladesh authorises the High Court Division to
use full power of superintendence and control over subordinate
courts and tribunals. The power under Article 109 is a general power
and includes the power to control all subordinate courts
administratively and judicially. This jurisdiction given under Article
109 has not been effectively implemented by the High Court
Division.
Sometimes, the High Court Division judges are sent to inspect
subordinate courts but the inspection reports are not strictly
followed. No surprise visit or inspection is made and the
accountability of the subordinate judges remains meaningless1.

The Supreme Court should under Article 109 formulate Code of

Conduct for the subordinate judges for the effective control and
supervision of the High Court Division. The Supreme Court also can
issue an appropriate order if it thinks fit that some sort of directions is
necessary for the better adminstration of justice.

Masder Hossian Case and A Brief History of the Separation of

Judiciary in Bangladesh
British Period
During the British rule there was a demand for separation of
judiciary from the executive. The British administration did not make
this separation thinking that separation might go against their colonial
interest. In 1919 the matter of separation of judiciary was raised in the
House of Commons but it was not discussed on the contention that it
was a matter within the jurisdiction of provincial government. In 1921
a resolution regarding separation of judiciary was passed in the Bengal
Legislative Assembly which was followed by formation of a
committee. The committee reported that there was no practical
problem in separation. However, nothing more was done.

C.J. Lati fur Rahman, Judicial Independence and Accountability ofJudges and the
Constitution of Bangladesh. 20 BLD (2000), journal 95
Constitution, Constitutional Law and Politics 373

Pakistan Period
After separation and independence in 1947 no step was taken in
East Pakistan. The United Front included the idea of separation in its
21 points formula in 1954. The first Constitution in independent
Pakistan was adopted in 1956. Unlike the Government of India Act
1935 (Ss 253, 254, 255 and 256) and the Constitution of India (Art. 233
to 237 in Chapter VI) this Pakistan Constitution of 1956 did not
provide for any provision regarding subordinate courts' or
'magistracv'; these were to be regulated by the Code of Civil Procedure
and the Code of Criminal Procedure. In 1957 the East Pakistan
Provincial Assembly passed the Code of Criminal Procedure (East
Pakistan Amendment) Act 1957 (No. 36) which dealt with separation.
However, this Act was never given effective. In 1958 the Pakistan Law
Commission recommended to bring the judicial magistrates under the
control of the 1-ugh Court. In 1967 the Law Commission again
recommended to give effect to the Cr. P. C Act 1957 (No. 36)
though nothing was done until 1972. In the Code of Criminal
Procedure (East Pakistan Amendment) Act 1957 (Act No. 36 of 1957)
an overhauling amendment was made in the Criminal Procedure Code
with a view to separating the judicial and executive functions of the
magistrates. A full discussion of that amendment is beyond the scope
of this work.

Bangladesh Period
In 1972 after independence of Bangladesh the Constitution of the
Peoples' Republic of Bangladesh was adopted. Provision was made in
Article 22 in the Fundamental Principles of State Policy that the state
shall ensure the separation of the judiciary from the executive organs
of the state.
In 1976 a Law Committee headed by Justice Kemaluddin reported
to implement separation of lower judiciary in three stages which are as
follows:

First Stage: The government may by notification, appoint some

particular Magistrates at each station exclusively for judicial work. This
can be given effect forthwith without any additional expenses or
administrative difficulties.
374 The Judiciary in Bangladesh

Second Stage: This should be the nature of separation of judicial

functions from executive as envisaged in the Code of Criminal
Procedure (East Pakistan Amendment) Act 1957 (Act No. 36).

Final Stage: The final stage would be not only complete

separation of judicial functions from executive but also constitution of
a separate integrated judicial service under the control of the High
Court Division for civil and criminal work right up to the level of the
District and Session Judge. The Committee also recommended that for
creation of an integrated judicial service, it would be necessary to enact
new legislation.

In 1987 by an amendment to the Criminal Procedure Code

President Ershad prepared a bill for separation of judiciary. However,
the bill did not see the light of the day. In Pakistan separation was
done in 1973 and in India in 1974 by an amendment to the Criminal
Procedure Code. In 1990 the issue of separation of judiciary was put
into the manifesto of the Three-Party Alliance movement against
Ershad regime. In every election after 1990 both the BNP and AL had
avowed commitment in their manifesto that going to power they
would separate judiciary from the executive.

In 1991 a private member's Bill by Mr. Salauddin Yusuf namely

the Constitution (141h Amendment) Bill 1991 was introduced for
further amendment of Articles 95, 98, 115 and 116 of the Constitution.
The Bill was sent to a select committee which had about 13 meetings
to consider it. The Bill tried to reinstate the provisions of the 1972
original Constitution envisaged by the 'Constitution-makers. The
revised bill was submitted in parliament in 1994. The comparison of
the original bill and the revised bill reveals that 'the BNP has come out
as the champion for the 4th Amendment of the Constitution though it
is the BNP which never misses any opportunity to condemn AL for
the 4th Amendment of the Constitution". However, nothing was done
to pass the Bill. The Bill, however, did not deal with anything about the
separation of subordinate judiciary. The government side did not
accept any proposal for amendment of Article 115 and 116 of the
Constitution. 'By not agreeing to restore the original provisions of

Challenge to the Independence of Judiciary, Md. Abdur Rashid 46 DLR

Constitution, Constitutional Law and Politics 375

Articles 115 and 116 the government has unmistakably demonstrated

that they are opposed to the separation of subordinate judiciary from
the executive' 2 . Shekh Hasina as the Prime Minister in the 71h
parliament kept echoing her commitment that she would do all for
separation of judiciary. A committee was formed headed by the
secretary of Law and Parliamentary Affairs. Abdul Motin Khasru, the
Law Minster stated that a bill for separation of judiciary from the
executive was under way but nothing more was done.

Masdar Hossain Case in 1999

441 judicial officers who were judges in different civil courts filed
writ petition No. 2424 in 1995. The petitioners alleged inter alia that:
(i) Inclusion of judicial service in the name of BCS (Judicial) under
the Bangladesh Civil Services (Re-organisation) Order 1980 is
ultra vires the Constitution;

(ii) Subordinate Judiciary under chapter II is the part of the PART-

THE JUDICIARY of Part VI of Constitution and thereby the
Subordinate Judiciary has already been separated by the
Constitution. Only the rules under Article 115 of the
Constitution and/or enactments, if necessary, are required to be
made for giving full effect to this separation of judiciary.

(iii) Judges of the subordinate Judiciary being the presiding Judges of

the courts cannot be subordinate to any tribunal and as such, the
judicial officers are not subject to the jurisdiction of the
Administrative Tribunal.
The matter came up for hearing on 13.06.1996. However, because
the petitions for time on behalf of the government were allowed
several times, it could not be heard before 01.04.1997. Government
did not contest the Rule and the court heard the learned Advocates for
the petitioners only. After a long hearing with valuable comments and
citations by Dr. Kamal Hossain, Syed Istaiq Ahmed and Mr. Amir-Ul
Islam the court delivered its judgment on 7th May 1997 (reported in 18
BLD 558). Against this judgment of the HCD the government
preferred an appeal by leave (Civil Appeal No. 79/1999) and the

2 Barrister Syed Istiaq Ahmed, Workshop of Independence of she Judiciary', CAC 1994
Secretary, Ministry of Finance V. Md. Masdar Hossain and Others 52 DLR (AD) 82
376 The Judiciary in Bangladesh

Appellate Division partly reversed the decision of the HCD by its

judgment delivered on 2nd December 1999 (reported in 52 DLR 82). It
would, therefore, be better to discuss the important points of the
judgment of the Appellate Division as far as thcy concern the concepts
of separation of subordinate judiciary from the executive. The main
part of the judgment w as delivered by Chief Justice Mustafa Kamal.
The operative part of the judgment came to be kNown as 12 point
directions 1 which are as follows:
(1) Judicial service is a service of the Republic within the meaning of
Article 152(1) of the Constitution, but'it is functionally and
structurally distinct and separate service from the civil, executive
and administrative services of the Republic.

(2) The word'appointment' in Article 115 means that it is the

President who under Article 115 can create and establish a judicial
service and a magistracy exercising judicial functions, make rules
etc; Article 115 does not contain any rule-making authority with
regard to other terms and conditions of service; Article 133, 136 of
the Constitution and Services (Reorganisation and Conditions) Act
1975 have no application in respect of the judicial functions.

(3) Creation of BCS Oudicial) cadre along with other BCS executive
and administrative cadres by Bangladesh Civil Service
(Reorganisation) Order, 1980 with amendment of 1986 is ultra
vires the Constitution, Bangladesh Civil Service Recruitment Rules
1981 are inapplicable to the judicial service.

(4) (i) Government is directed to take necessary steps forthwith for

the President to make Ruks under Article 115 to implement its
provisions. (ii) Nomenclature of the judicial service shall be
designated as the Judicial Service of Bangladesh. (iii) Either by
legislation or rules or order a Judicial Service Commission is to be
established forthwith with the majority of members from the

It has been typical to report that in Masder Hossain case the Supreme Court gave 12
directions. In fact these 12 points in the operative part of the judgment are not all
directions in true sense of the term. Of these 12 points 5 are in the nature of directions
and 7 are in the nature of declaration. Points 4,5,6,8 and 9 are in the nature of diretions.
Constitution, Constitutional Law and Politics 377

Senior Judiciary of the Supreme Court and the subordinate courts

for recruitment to the judicial service.
(5) Under Article 133 law or rules relating to posting, promotion,
grant of leave, discipline, pay, allowance and other terms and
conditions of service consistent with Article 116 and 116A shall be
enacted separately for the judicial service.
(6) Government is directed to establish a separate Judicial Pay
Commission forthwith as part of the Rules to be framed under
Article 115.
(7) In increasing control and discipline of persons employed in the
judicial service and magistrates exercising judicial functions under
Article 116 the views and opinion of the Supreme Court shall have
primacy over those of the Executive.
(8) The conditions of judicial independence in Article 116A namely,
(i) security of tenure (ii) security of salary and other benefits and
pension and (iii) Constitutional independence from the parliament
and the executive shall be secured in the law or Rules made under
Article 113 or in the executive orders having the force of Rules.
(9) . The executive government shall not require the Supreme Court of
Bangladesh to seek their approval to incur an y expenditure on any
items from the fund, allocated to the Supreme court.
(10) The members of the judicial service are within the jurisdiction of
the administrative tribunal.
(11) Amendment of the Constitution for separation of judiciary from
the executive may be made by the parliament.
(12) Until the Judicial Pay Commission gives its first recommendation
the salary of judges in the judicial service will continue to be
governed by status quo ante.

Implementation of the Judgment in Masder Hossain Case

The judgment was pronounced by the Appellate Division in 1999.
Up to February 2006 the successive governments took 23
adjournments to implement the judgment on this or that plea. During
the last Caretaker Government in 2001 4 drafts were prepared: (1)The
Code of Criminal Procedure 1898 (Amendment) Ordinance 2001; (2)
Judicial Service Commission Rules, 200; and (3) two rules on Judicial
Service.
378 The Judiciary in Bangladesh

The Caretaker Government did not implement any of those drafts

and the responsibility came to be for the subsequent BNP
Government to inplement the judgment. The incumbent upon the
BNP Government to implement came to be based on three-sided
pledge: first, it was BNP's avowed manifesto in the 81h Parliament
election to implement separation of judiciary; second, after wining the
election the BNP promised the Caretaker Government that after
formation of the newly elected government, it would implement the
judgment of the Masder Hossain case without any delay and relying on
that pledge the Caretaker Government did not implement the
judgment in their last cabinet meeting; third, it was mandatory for the
government to implement the judgment of Masder Hossain case as an
order of the Highest Court of the land. However, the BNP
Government which completed its five year term in power did not do
anything substantive to implement their pledge. Barrister Moudud
Ahmed who was the Minister of Law and Parliamentary Affairs told
the dailies that it would take another 6-7 years to implement the
separation of judiciary. 1 Lastly on Pt February, 2006 the Appellate
Division rejected time prayer by the Government for third time and
fixed February 22 as the date of the contempt petition against the
Government for not separating judiciary from the executive as per
Supreme Court's direction. Earlier the court twice rejected similar
government pleas- on August 7, 2004 and again on October 20, 2004.
Finally the caretaker Government headed by Dr. Fakhruddin Ahmed
amended the Criminal Procedure Code, 1898 in November, 2007 and
along with these changes the lower judiciary was separated from the
clutches of the executive on 1 11 November, 2007. Although the term
c execuflve magistrate' still exist in the Code of Criminal Procedure,
1898, executive magistrates are no longer vested with any judicial
functions; their functions are administrative in nature.

1 Jugantor, 26th May, 2003

Constitution, Constitutional Law and Politics 379

The Judicial System of Bangladesh at a glance

^ppellate Division ]
F

High Court Division

District Judge Sessions Judge

Additional Distnct Additional Sessions Judge

Judge

Joint Sessions Judge

Joint District Judge

At.
Senior Assistant JudeJ CMM Court Chief Judicial
Magistrates

Assistant Judge Additional Chief

Additional
Chief Judicial Magistrate
Metropolitan
Courts
rJudicial
Magistrates
Other
Metropolitan
CourtsJ
First Class Magistrates
Second Class Magistrates
Third Class Magistrates
380 The Judiciary in Bangladesh

Besides the above mentioned courts there are some tribunals and
special courts like Juvenile Court, Labour court, Administrative
Tribunal etc.

The Supreme Court of Bangladesh

Article 94(1) of the Constitution provides that 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.

The High Court Division: Powers and Functions

According to Article 101 there are two sources of powers and
jurisdiction of the High Court Division-the Constitution and ordinary
law. Hence the jurisdiction of the High Court Division may be divided
into two categories-ordinary or general jurisdiction and Constitutional
jurisdiction.

Ordinary Jurisdiction
Jurisdiction conferred on the HCD by any ordinary law is its
ordinary jurisdiction which may be of following types:

1. Original Jurisdiction
Original jurisdiction of the 1-lCD means that jurisdiction whereby it
can take a case or suit as a court of first instance. It is for the ordinary
laws (laws passed by parliament) to prescribe what particular subject
matter will come under the ordinary jurisdiction of the HCD. For
example, the Companies Act, 1913, the Admiralty Act, 1861 and the
Banking Company's Ordinance, 1962 etc. have conferred on the high
Court Division the ordinary jurisdiction.

2. Appellate Jurisdiction
Any law may confer on the HCD appellate jurisdiction on any
matter. For example, the CrPC and the CPC have conferred on the
HCD appellate jurisdiction.
Constitution, Constitutional Law and Politics 381

3. Revisional Jurisdiction
Revisional jurisdiction of the HCD means the power whereby it
examines the decisions of its subordinate courts. For example, section
115 of the CPC has conferred on the HCD the revisional power.

4. Reference Jurisdiction
Reference jurisdiction means the power whereby the 1-lCD can
give opinion and order on a case referred to it by an y subordinate
court. For example, section 113 of the CPC gives theHCD reference
jurisdiction.

Constitutional Jurisdiction of the HCD

The Constitution itself has conferred on the HCD the following
three types of jurisdictions:
A. Writ Jurisdiction;
B. Jurisdiction as to Superintendence and Control over courts; and
C. Jurisdiction as to Transfer of Cases.

A. Writ Jurisdiction
The Constitution has conferred on the HCD original jurisdiction
only in one case and this is the field of writ matters. The basis of writ
jurisdiction is Article 102 of the Constitution. Writ jurisdiction means
the power and jurisdiction of the HCD under the provisions of the
Constitution whereby it can enforce fundamental rights as guaranteed
in part III of the Constitution and cn also exercise its power of
judicial review. Detailed discussion on writs is available in this author's
another book titled "Constitution, Constitutional Law and Politics:
Bangladesh Perspective" though a brief discussion is given here.

Writ: Writ means a written document b y which one is summoned

or required to do or refrain from doing something. Historically writ
oririated and developed in British legal system. As defined by
Blackstone, 'writ is a mandatory letter from the king-in-parliament,
sealed with his great seal, and directed to the Sheriff of the country
wherein the injury is committed or supposed so to be, requiring him to
382 The Judiciary in Bangladesh

command the wrongdoer or party caused either to do justice to the

complainant, or else to appear in court and answer the accusation
against him." 1 Initially writs were royal prerogatives. Since only the
King or Queen as the fountain of justice could issue writs, they were
called prerogative writs. "They were called prerogative writs because
they were conceived as being intimately connected with the rights of
the crown." 2 The king issued writs through the court of Kings' Bench
or the Court of Chancery. The prerogative writs were five in
number—Habeas Corpus, Certiorari, Prohibition, Mandamus, and
Quo-Warranto. The King issued them against his officers to compel
them to exercise their functions properly or to prevent them from
abusing their powers. Subjects being aggrieved by the actions of the
king's officials came to the King and appealed for redress. And the
King through the above mentioned two courts issued them against his
officials to give remedies to his subjects. Gradually as the
governmental functions increased and the concept of rule of law
emerged and the courts became independent, these writs came to be
the prerogatives of courts instead of the King and lastly they came to
be the prerogatives of the peopje, for they are now guaranteed rights in
the constitutions of many co nines and citizens can invoke them as of
right.

Writ of Habeas Corpus

The word 'Habeas Corpus' means 'have his body' i.e. to have the
body before the court. So it is a kind of order of the court that
commands the authorities holding an individual in custody to bring
that person into court. The authorities must then explain in the court
why the person is being held. The court can order the release of the
individual if the explanation is unsatisfactory- Thus the writ of 'Habeas
Corpus' is a process for securing the personal liberty of the subjects by
affording an effective means of immediate release from unlawful or

I Quoted by. Pirzada, Sharilliddin. Fundamental Rights and Constitutional Remedies in

Pakistan, (Lahore: All Pakistan Legal DecJions, / 966). P.417
2 Smiths Judicial Review olAdniinistrative ' Acion, P. 167, Quoted by, Amin Ahmed, J.
Judicial Review of Administrative Action in Pakistan., (Dhaka University 1969), P.
33
Constitution, Constitutional Law and Politics 383

unjustifiable detention, whether in prison or in private custody. 1 This

writ is the most important weapon forged by the ingenuinity of man to
secure the liberty of the individual. There is no judicial process more
familiar or important than this. Lord Acton points Out that it is often
said that the British Constitution "attained its final perfection in 1679
when Habeas Corpus Act was passed"

2. tit of Mandamus
Literally the term mandamus' means 'we command' and reminds
one of the times when the King of England "as the autocratic head of
a vast administrative system had occasion to mandamus his subjects
many times in the course of the day". In Haisbury's Laws of England3
mandamus is described as fc:lows:
The order of mandamus is an order of a most extensive remedial nature,
and is in form, a command issuing from the High Court of Justice
directed to any person, corporation or inferior tribunal, requiring him or
them to do some particular thing therein specified which appertaining to
his or their office and is in the nature of public duty.
Thus it is clear that when a court or tribunal or an authority or a
person has refused or failed to perform aiis statutory obligation, it is
the writ of mandamus bywhich the igher court can compel the
authority or court or person to d9_kis statutory obligation. So
mandamus is a positive. remedy.

onit f Prohibition
Prohibition is an original remedial writ, as old as the common law
itself. Originally the primary purpose of prohibition was to limit the
jurisdiction of the ecclesiastical courts. Prohibition as a writ means one

Zabrivs/cy v General Officer 1947 All C246 Quoted by Pirzada. Ibid, P. 435
Essays on Freedom and Power, P. 54, Quoted by l-(idayatullah. M, Democracy in India
and Judicial Process, (New Delhi: Asia Publishing House, 1965) P. 76
The application for writ of habeas corpus is one and an application for bail is another.
Both secure the freedom of the individual in different ways. Every person who is placed
under arrest is emitted to know the reason, to have assistance of counsel of his choice
and to have his case heard. These rights are fundamental to liberty and they can be
enforced by the writ of habeas corpus.
V ol. 11 3rd ed. Para 159. 11.84
384 The Judiciary in Bangladesh

which prevents a tribunal possessing judicial or quasi-judicial powers

from exercising jurisdiction over matters not within its cognizance.
Thus prohibition is originally a judicial writ since it can be used against
a judicial or quasi-judicial body and not against an administrative body
or public corporation or body. But no longer it remains limited to he
used only against judicial and quasi-judicial body. The wording in 1962
Constitution of Pakistan and also in present Bangladesh Constitution
makes it clear that this writ can be used against any public body. It is
thus clear that when a court, or a tribunal or an authority or a person is
about to violate the principles of natural justice' or is about to abuse
the power or is about to act in excess of its jurisdiction, the higher
court by issuing a writ of prohib ,tion can prohibit the tribunal, court or
authority from doing suchact. prohibition is a preventive remedy.

4 nt of Certiorari
The term 'certiorari' means 'to be certified' or 'to be more fully
informed of. The writ of 'certiorari' is so named because in its original
form it required the King 'should be certified' of the proceedings to be
investigated. This writ was drawn up for the purpose of enabling the
Court of King's Bench to control the action of inferior courts and to
make it certain that they should not exceed their jurisdiction; and
therefore, the writ of certiorari is intended to bring into the High
Court the decision of inferior tribunal, in order that the High Court
may be certified whether the decision is within the jurisdiction of the
inferior courts.2
Initially at common law certiorari used to be used either form the
King's Bench or the Chancery for the purpose of exercising
superintending control over inferior courts. So certiorari was
necessarily a judicial writ at its initial stage. But gradually, the
jurisdiction was enlarged to include within its fold all authorities
performing judicial, quasi-judicial and even administrative functions.
Thus certiorari is no longer a judicial writ. When a court or a tribunal

The Principle of natural justice basically means two principles

I) No one should be condemned unheard: &
ii) No one can be a judge of its o%i1 cause.
2 Scnitton. L.J. Quoted by. Pirzada. Ibid, P. 421
Constitution, Constitutional Law and Politics 385

or an authority or a person has already violated the principle of natural

justice, or misused the power or acted in excess of its jurisdiction, the
higher court by issuing certiorari can quash that act i.e. can declare that
act illegal. This is certiorari.

Distinction between Certiorari and Prohibition

1. The grounds of both the writs are same but the distinction lies in
that prohibition is a preventive remedy while certiorari is a curative or
corrective remedy. Prohibition applies where the authorit y is about to
misuse the power whereas certiorari applies where the authority has
already abused the power.

2. A writ of certiorari will be issued when the proceeding is closed,

while an order of prohibition can be issued only so long as the
proceeding remains pending. It cannot be issued after the authority has
ceased to exist or becomes fuii c/us officio. I

3. Prohibition =
nto"meansr6opping an act at its starting
whereas certiorari e the act illegal.

o Warranto
The term "qu"by what warrant or authority."
Quo-warranto is a writ by which any person who occupies or usurps
an independent substantive public office or franchise or liberty, is
asked to show by what authority he claims it, so that the title to the
office, franchise or liberty may be settled and unauthorised occupants
be ousted by judicial order. More precisely, when a person illegally
holds a public office created by law, the higher court may, on the
application of any person, by issuing quo-warranto, ask the person to
show on what authority he holds the office and can make him not to
hold such office further.

I/wi Vishnu Kwnoih v ,Ihined Ishaque AIR 1955 SC 233

25
386 The Judiciary in Bangladesh

The names of various writs have not been used in Article 102 but
the true contents of each of the major writs have been set out in
self-contained propositions.

Background
In British India a Supreme Court was first established in 1774
under the Regulating Act of 1773. This court was first empowered to
issue prerogative writs. Later two Supreme Courts were established in
Madr (in 1800) and Bombay (in 1823) and these two courts were also
given writ power. In 1862 three Supreme Courts were abolished and in
their place three High Courts were established. These three High
Courts were empowered to issue prerogative writs. After the partition
in 1947 India and Pakistan became two independent Dominions. The
Indian Constitution adopted in 1949 gave both the Supreme Court and
the High Courts power to issue writs and specific names of all writs
were incorporated in both Articles of 32 (for the Supreme Court) and
226 (for the High Courts). Under the 1956's Constitution of Pakistan
both the Supreme Court and the High Courts were given power to
issue writs and specific names of all writs were incorporated in the
Articles 22 for the Supreme Court and 170 for the High Courts. But it
was 1962's Constitution of Pakistan where for the first time a change
was introduced in writ matters. Unlike earlier the Supreme Court was
not given any original writ jurisdiction. Only the High Courts were
empowered under Article 98 to issue writs but the particular names of
specific writs were not used in wording of this Article. Provisions were
made instead where true contents of each of the major writs had been
set out in self-contained propositions. As to this change Cornelius, C.J.
said:
'Now in Pakistan we have Article 98, and the ancient names of the
writs have been eliminated from the Constitution, although the
categories distinguish themselves easily under those names, and they will
..iways be used with their specific meanings in judgments. In Article 98
In, content of each of the major writs has been set out in the long form
of words. The object probably was to attain certaint y as to the limits
within which the courts may act. Previously, in each case the courts
efeired to precedents from England, the United States, India and several
)her c'-untries, to determine whether they had power to interfere in the
Constitution, Constitutional Law and Politics 387

case before them. It is perhaps supposed that this may not-be necessary
now that the powers are stated not by label, but by full expression.
However, it is to be remembered that the earlier precedents will lose
their value as guidance. In the new article there are verbal changes in
respect of the availability of the writ to public servants, for the
protection of their rights in the public service."

Following the instance of the Pakistan 1962 Constitution the

Constitution makers of our country also did not incorporate the
specific names of various writs in Article 102 of the Constitution;
rather contents of each of the writs have been kept in self-contained
provisions. Why have the specific names of various writs been
omitted?
No specific reasons have been stated by the Constitution makers
though it is assumed that for following two reasons the names of
various writs were omitted in 1962 Constitution of Pakistan and the
same applies to the Bangladesh Constitution.

First, in Britain the Administration of Justice (Miscellaneous

Provisions) Acts, 1933 and 1938 were passed whereby mandamus,
prohibition, Certiorari and quo-warranto were abolished as writs. Of these
mandamus, prohibition, and certiorari have been turned into orders and
quo-warranto into injunction. Thus in Britain there is only one
independent writ and it is habeas corpus. This might have influenced the
Constitution makers of 1962 Constitution of Pakistan in not using the
specific names of various writs.

Second, some writs have limited scope in their application. For

instance, prohibition and certiorari these—two writs are basically judicial
writs and are applicable only in respect of judicial and quasi-judicial
bodies. Thus if the specific names of prohibition and certiorari are used,
then the courts will not be able to apply them to control administrative
actions for which separate procedure is to be provided for. To avoid
this inconveniences the specific names of writs have not been
incorporated; rather provisions have been inserted so that the contents

PLD 1964 Journal Section. PP.74-79.

388 The Judiciary in Bangladesh

of those writs are retained and the control of administrative actions

may, as well, be possible by the same device. The words of Munir
Qadir, C.J. is pertinent to mention in this respect—
"The present Constitution b y its 98th Article, appears to have made
an attempt to reduce (the matters of writs) into self-contained
propositions . ....... In the course of their evolution some distinguishing
incidents had come to attach separately to some of these writs. Those
distinguishing features, it seems, have not been incorporated in Article
98, apparently because they were not regarded as being of the essence of
the remedy. The conditions of exercise of jurisdiction in relation to the
various writs have thus become more uniform. As a consequence, in
some cases the field covered b y the earlier writ has become somewhat
enlarged..... The writ of certiorari, for example, was available originall y in
respect of judicial or quasi- judicial determination only. It was not
available in respect of non-judicial determinations. Article 98 has not
preserved any such distinction, with the result that all orders passed in
excess of lawful authority, whether by judicial, quasi-judicial or non-
judicial functionaries, are equally liable to be declared as being of no legal
effect. "1

Now we will investigate Article 102 of our Constitution to see how

the true contents of each of the major writs have been set out in self-
contained propositions.
As Article 102 proceeds-
"The High Court Division may, if satisfied that no other
equally efficacious remedy is provided b y law-
(a) on the application of any person aggrieved, make, an order-
(i) "directing a person performing any function in the affairs of the
Republic or of a local authority to refrain from doing that which he is not
permitted by law to do."
This italic part of the section contains the true idea of prohibition.
Here "which he is not permitted by law" means that he may be about
to misuse or abuse his power or to act in excess of his jurisdiction
prescribed by law. In such a case the High Court Division, on
application, may issue the writ of prohibition with a view to
prohibiting or refraining the person concerned from doing that act.

Mahboob .4/i Malik v Province of West Pakistan PLD 1963 Lah 575.
Constitution, Constitutional Law and Politics 389

The same sub-Article continues-

to do that which he is required by law to do. "-This parrof the Article
contains the true concept of mandamus. "to do that which he is
required by law to do" means that the person concerned is under
statutory obligation to do something but he has refused or failed to
perform his obligations. In such a case the HCD by issuing the writ of
mandamus, can compel the person or authority to perform his
statutory, obligation.

Now the sub-Article 102(2) (a)(ii) proceeds-

"declaring that any act done or proceeding taken by a person
performing functions in connection with the affairs of the Republic or of
a local authority has been done or taken without lawful authority and is
of no legal effect." Here lies the concept of certiorari.

Now the sub-Article 102(2) (b)(i) proceeds-

"On the application of any person, make an order-
(i) directing that a person in custody be brought before it so that it
may satisfy itself that he is not being held in custody , without lawful
authority or in an unlawful manner". Here the very concept of the writ
of habeas coipus is hidden.

Lastly sub-Article 102(2) (b)(ii) states-

requiring a person holding or purporting to hold a public office to
show under what authority he claims to hold that offce' -this part contains
the concept of quo-warranto.

Writ Jurisdiction, Public Interest Litigation (PI L)

and the Concept of 'Aggrieved Party'.
Of the five writs two can be invoked by any person according to
the provisions of Article 102 of our Constitution. These are writs of
habeas corpus and quo-warranto. But other three writs (prohibition, certiorari
and mandamus) can be invoked only by an 'aggrieved person). It is
important to mention here that in one sense these latter three writs are
most important. Because most of the public authorities, bodies and
officials frequently violate law and act in excess of jurisdiction causing
repeated sufferings to the people and giving rise to huge grounds of
390 The Judiciary in Bangladesh

application for these three writs. But any one cannot apply for these
writs due to the following two barricades:

irsdy, writ powers of the HCD is not any discretionary power. As

a result, it cannot issue writs suo me/u against any public bodies.

Secondly, any ersot annot apply for these three writs; only an
'grievcd person' has /oc)s statidi (right to sue).
A person is said to have locus s/audi when he is aggrieved by actions
or inactions pf a public servant or official or authority. Now when a
person is said to be aggrieved? A person is said to be aggrieved-
(i) when he has suffered a legal injury by reason of violation of his
legal right or interest ; and

(ii) when he has shown that he has a direct personal interest in the
act which he challenges.2

• If these two conditions are not fulfilled, the High Court Division
will not allow a writ petition. This is why it is not possible to file
public interest litigation PIL). 3 This barricade of 'aggrieved person'
does not, of course, exist in India. Because under Articles 32 and 226
of the Indian Constitution the writ jurisdiction of the Supreme Court
and High Courts depends on their discretion. As a result, they can
issue sue mom writs even on the basis of a letter or an information in a
newspaper. Again, unlike ours, in Indian Constitution it is not
mentioned who can apply for enforcement of fundamental rights and
Constitutional remedies. As a result, any person may file petition for
any of the writs and this has made PIL a great success in India.

S.P. Gupta v india A IR 1982 SC149 at para 14-16

Tariq Transport V . Sargodha- V era Bus Service II DLR (SC) 140
PIL : it means litigation in the interest of public and not in the merest of the litigant
himself. PIL is a concept of recent origin evolved by the Indian Supreme Court on the
plinth of equal justice by giving liberal interpretation to the long standing rigid
concept of locus standi. The Supreme Court has advocated for social justice lbr the
poor by way of this PIL and the Court has devised this new tool for mitigating the
sufferings of the poor people. It is a device in the way of constitutional promise of
social and economic transformation to usher in an egaliterian social order and a welfare
state. Ref. AIR 1983 SC 1477, De, Di, New Dimension of Constitutional Law,
(Calcutta: Eastern Law House, 1991).
Constitution, Constitutional Law and Politics 391

The first reported case on PIL in India is S.P. Gupta V. Union of

India AIR 1982 SE 149 where Bhagwati C.J. observed-
"It may now be taken as well as established that where a legal wrong
or injury is caused to a person or to a determinate class of persons by
reason of violation of any constitutional or legal right .....and such
person or determinate class is by reason of poverty or disadvantaged
position unable to approach the court for relief, any member of the
public can maintain an application for an appropriate direction, order or
writ in the High Court under Article 226 and in case of breach of any
fundamental rights of such person or persons in the Supreme Court
under Article 32."

Justice Bhagwati also described PIL as the strategic arm of the legal
aid movement and he said that it aims at bringing justice within the
reach of the poor vulnerable masses and helpless victims of injustice. It
brings justice to the doorsteps of the weak, the unorganised and
exploited section of the society who have no access to the courts
because of the prohibitive cost of litigation. Following the footsteps of
the Indian Supreme Court, both the SriLankan and Pakistan Supreme
Courts, despite the Constitutional limitation, are widely allowing PIL.

4t in our Constitutional system the court confines itself to asking

whether the petitioner is an 'aggrieved person" -a phrase which has
received a meaning and dimension over the years. No doubt, it is a
Constitutional rule, as the expression, 'any aggrieved person' is worded,
that the petitioner must be an aggrieved person for the enforcement of
his rights. But who is an aggrieved person? When can a person be said
to be aggrieved? -All these are questions to be decided and explained
by the judges themselves. Here is the sphere where judges can launch
their contribution to the development of judicial review. The court can
explain a word e.g. the 'aggrieved person' either in liberal sense or in
narrow senses. To be mentioned here that the concept of 'aggrieved
person' has got much more wider consideration in the present
Constitutional jurisprudence than the old 19th century's conception.
During the 19th century these words were construed very restrictively
in Britain. It was said that a man was not a 'person aggrieved' unless he

One of the most discussed cases where our Supreme Court has taken restrictive view
and rejected Pit, is Bangladesh Sangbadpatra Parished V. Bangladesh 43 DLR (AD)
126
392 The Judiciary in Bangladesh

himself had not suffered particular loss in that he had been injuriously
affected in his money or property rights. But in 1957 in a case Lord
Justice Parker and Lord Denning departed from this old conception. It
was 4 Blackburn Cases' which extended the concept of 'aggrieved
person' and particularly the scope of locus stamJe
In one of these Blackburn cases Lord Denning stated the liberal
concept of 'aggrieved person' -
"I regard it as matter of high constitutional principle that if there is
good ground for supposing that a government department or a public
authority, is transgressing the law or is about to transgress in a way which
offends or injures thousands of her Majesty's subjects then any one of
those offended or injured can draw it to the attention of the courts of
law and seek to have law enforced and the courts in their discretion can
grant whatever remedy is appropriate."
Finally he says about locus standi -
"But I do not think grievances are to be measured in pounds,
shillings and pence. If a rate-payer or other person finds his name
included in a valuation list which is invalid, he is entitled to come to the
court ... He is not to be put off by the plea that he has suffered no
damage. The court will riot listen to a busy body who is interfering in
things which do not concern him, but it will listen to an ordinary citizen
who comes asking that the law should be declared and enforced, even
though he is only one of a hundred, or one of a thousand or one of a
million who are affected b y it.12

Following the decisions of these Blackburn cases in England new

Rules of Court were brought into force in 1978 providing for that
applicant having a sufficient interest' in the matter to which the
application relates will be considered as aggrieved person. (Order 53 of
the Rules of the Supreme Court).

For details, see, Kamal. Mustafa. J, Bangladesh Constitution Trens and Issues, PP
162— 165
Blackburn V. Attorne y General (1972)1 WLR 1037
R. V. Blackburn (1973) QB 241
R. V. GLCexparte Blackburn (1976)1 WLR 550
R. V. Commissioner of Police of the Metropolis
Quoted by. Islam. M. Amir-Ul. Rights in Search of Remedies. A paper, now compiled
in Public Interest Litigation in South Asia. (Dhaka UPL. 1997)
Constitution, Constitutional Law and Politics 393

Thus in today's world revolutionary changes are taking place in the

judicial process and the problems of the deprived section of the
communit y are coming on the forefront. The courts in various
countries have to innovate new methods and devices, new strategies
for the purpose of providing access to Justice to large masses of
peoples who are deprived and to whom freedom and liberty have no
meaning. Considering all these developing judicial trends the Supreme
Court of Bangladesh should expressly come forward to allow PJL. In
favour of liberal interpretation of the term "aggrieved person" some
more important points should be mentioned-
1. Article 102 of our Constitution uses the term 'any person
aggrieved'. It does not use the expression as "aggrieved party" or "any
Person personally aggrieved."

2. Sri Lanka and Pakistan- these two neighbouring countries have,

although they have same Constitutional constraints as we have in
Constitution, already overcome the barricade of 'aggrieved person' and
they are now widely allowing PIT.. So wh y not our Supreme Court?

3. Besides the question of locus s/audi and procedural rules there is

yet another aspect of public right which need special mention. In the
increasing and expanding role of the state in socio-economic activities
public are affected by the legislative and executive action. It often
involves public money, sales or parchase with public fund. State purse
as well as the state iargeei are used for political or personal gains. This
also breads corruption and nepotism. From political side, there is
neither any provision for individual responsibility of ministers nor does
any strong committee system exist in Bangladesh. This has resulted in
uncontrolled corruption and nepotism in every department of the
government. In such a situation if the highest court, the supreme
object and functions of which are to protect fundamental rights and to
control the arbitrary actions on the part of the government, does not
come forward from within its possible bounds, then promises of the
people of equality, Justice, rule of law etc. as enshrined in the preamble
to the Constitution will remain as meaningless versions.
394 The Judiciary in Bangladesh

Breaking the Barricade

the issue of 'locus stand? and 'aggrieved person' which were
issues knocking the door of the Supreme Court for nearly a decade
Justice Mustafa Kamal commented in 1994—
"But the emerging trend of constitutional litigation is that it is not
only the person whose interest is adversely affected by an order of a
public official who is coming to the court to seek a redress, but also
other persons, voluntary societies, representative organisations, trade
unions etc. which are coming in increasing numbers to test the validity of
a law or an action of public official in which their own direct personal
interests are not involved, but in which the y have a sufficient interest. It
is these groups of new generation of constitutional litigants who are
knocking at the door of the Supreme Court to gain entry into the
threshold point. Constitutional lawyers, judges and courts all over the
world are now facing them and providing adequate response to their
loudly raised voice for access to justice. It will be interesting to see how
the Supreme Court of Bangladesh finds its own answer to this issue. "1

However, lastly our Supreme Court has come forward to untie the
knots of procedural technicalities in respect of locus slandi and respond
to the loudly raised voice for access to justice. It was the case of Dr.
Mahiuddin Farooqiie v. Bangladesh (Civil Appeal NC). 24 of 1995)2 where
the Supreme Court extended scope of writ jurisdiction through which
voluntary society, representative organisations, trade unions and
constitutional activists and individuals having no personal interest in
the case would be able to test the validity of a law or an action of the
executive affecting public interest. We hope that this judgment will act
as a beacon-light for future initiation of PIL in Bangladesh which can
ultimately pave the way for ensuring social justice and legal aid to all.

It is, of course, pertinent to mention here that in Bangladesh the

first challenge to the concept of locus .c/andi was thrown in the case of
Kaç-i Mukhles,,r Rahman V 13an.gladesh 26 JLR (Al)) 44. But the
implications of this decision have not yet been fully grasped, for there
has been no follow-up of the decision, either from the Bar or from the

Kamal. Mustala. J. Ibid, P. 161

2 Judgment delivered on 25th July. 1995
Constitution, Constitutional Law and Politics 395

Bench, blossoming the decision in varied directions) However, after

22 years of this decision allowing PIL our Supreme Court has again
moved towards the positive turn of PIL in Dr. Mahiuddin Farooque's
case.

Following the decision in the Dr. Mahiuddin Farooqu case the

Supreme Court has subsequently expanded and confirmed the scope
of locus s/audi in some important case like Professor Narwl Is/am and
others v. Banlade.rh, 52 DLR 413, Ban/adesh Sanghad Patra Parishad v. The
Government of Bangladesh, 43 DLR (AD) 126.

B. Jurisdiction as to Superintendence and Control

Article 109 of the Constitution states that the HCD shall have
superintendence and control over all courts and tribunals subordinate
to it. This power is also called the supervisory power of the HCI). So t
the condition for supervisory power is that the court or tribunal must
be subordinate to the HCD. Now a question necessarily arises—when
is a court or tribunal said to be subordinate to the I-lCD? To be
subordinate to the HCD the court or tribunal must be subject to its
either appellate or revisional jurisdiction. In other words, the courts
and tribunals against whose decision either appeal or revision lie before
the HCD are called subordinate courts and tribunals to the High Court
Division.

Nature of the Supervisory Power of the HCD

1 The supervisory power of the I-lCD as conferred by Article 109
is a Constitutional power. And this power of superintendence is in
addition to the power conferred upon the I lCD to control inferior
courts or tribunals through writs under Article 102. This supervisory
power and the revisional power of the HCD under section 115 of the
CPC and section 439 of the CrPC are of the same nature. But the
revisional powers under the CPC and CrPC are only statutory
supervisory powers whereas power under Article 109 of the
Constitution is a Constitutional supervisory power. Statutory

For details, see, Kamal. Mustafa J. Ibid, P. 164-166

396 The Judiciary in Bangladesh

Supervisory power extends to judicial, but not to administrative

matters, while the Constitutional supervisory power extends to both
judicial and administrative matters) The statutory Supervisory power
covers only courts but Article 109 covers courts as well as tribunals
subordinate to the I lCD. The statutory supervisory power can be
curtailed b y legislation but Constitutional supervisory power under
Article 109 cannot be curtailed except by an amendment to the
Constitution.
2. The supervisory power under Article 109 is a discretionary
power and Sc) no litigant can invoke this power as of right.2
3. Being a supervisory power the HCD can apply it $110 mo/u; again
it can be exercised on application by a party.
4. Under this supervisory power the 1-lCD can interfere in the
functioning of subordinate courts or tribunals in the following
circumstances
i) want or excess of jurisdiction.3
ii) failure to exercise jurisdiction.

iii) violation of procedure or disregard of principles of natural

just'c.5
iv) findings based on no materials, 6 or order resulting in manifest
injustice.'

Distinction between Writ Power under Article 102 and the

Supervisory Power under Article 109
1. The writ power under Article 102 can be exercised only on
application by a party, while the supervisory power under Article 109
can be exercised sno mo/il by the HCD without any application by any
party.

1 A. T A ir/C/ha V State 25 D[.R 335

2
A. Sarin V . i/C. Patel. A IR 1951 I3oni 423
Gu/ab Singh V . Collector ofFarrukhabad AIR 1953 All 585.
H'arvam Singh V . A ,na,nath AIR 1954 SC 215
V. Labour A ppellate Tribunal AIR 1957 Born 142
6 Orissa V . Mura/idhar A l
R 1963 SC 404
Trwzbak Gangac//iar V . Ranichwidra A IR 1977 SC 1222
Constitution, Constitutional Law and Politics 397

2. The supervisory power under Article 109 can be exercised only

in respect of courts and tribunals subordinate to 11. But the writ power
under Article 102 can be exercised irrespective of the question whether
the court or tribunal is subordinate to 14("1). Of course, this writ
power is not applicable to those tribunals which comes under the
preview of Article 102(5).

3. The supervisory power is purel y a discretionary power with the

lICI) and no litigant can invoke this jurisdiction as of right. But the
writ power under Article 102 is not a discretionary power. A person
whose fundamental rights have been infringed can file, as of right
which is guaranteed in Article 44, an application for enforcement of his
rights and if the HCD finds that his fundamental rights have been
violated, then it is obligatory on the I-lCD to give remed y . And if the
applicant is not satisfied with the HCDs remed y, he may appeal to the
Appellate Division under Article 103 of the Constitution.

C. Jurisdiction as to Transfer of Cases

Under article 110 of the Constitution the I lCD may transfer a case
form subordInate court to itself. But the condition is that the I-lCD is
to be satisfied that-
i) a substantial question of law as to interpretation of the
constitution is involved in the case ; or
ii) a point of general public importance is involved in the case.

If the HCD, on being so satisfied, withdraws a case from a

subordinate court, it will take following three alternatives:
i) It may dispose of the case itself; or
ii) It may determine the question of law and return the case to the
court from which it has been so withdrawn together with a
CODY of the judgment of the division on such question, and the
court to which the case is so returned, on receipt thereof,
proceed to dispose of the case in confor nity with such
judgment; or
398 The Judiciary in Bangladesh

iii) It may determine the question of law and transfer it to another

subordinate court together with a copy of the judgment of the
division on such question and the court to which the case is so
transferred shall, on receipt thcreof, proceed to dispose of the
case in conformity with such judgment.

Nature of the Power of Transfer of Cases under Article 110

The power of transfer under Article 110 is a discretionary power
and so no litigant can invoke this power as of right. This power can be
exercised suo morn by the HCD or on an application by any party to a
suit. Again, the subordinate court before whom the case is pending
may, also refer the case to the HCD. It is to be mentioned here that the
HCD has ben given power of transfer of civil suits and criminal cases
by the CPC and CrPC under certain circumstances. But this latter
power of transfer is a statutor
y power whereas the power under Article
110 is a Constitutional power.

The Appellate Division: Power and Functions

The Appellate Division of the Supreme Court has no original
jurisdiction. As like as the High Court Division the source of
jurisdiction of the Appellate Division is also two —the Constitution
and ordinary law. But an ordinary law can give the Appellate Division
only appellate jurisdiction as stated in Article 103 (4) of the
Constitution. For example, section 6A of the Administrative Tribunals
Act, 1980 provides that appeal may be preferred to the Appellate
Division against the decision of the Administrative Appeal Tribunal by
way leave petition. -

-Constitutional Jurisdiction of the Appellate Division

The Constitution itself has conferred on the Appellate Division the
following four types of jurisdictions:
.A. Appellate Jurisdiction;
B. Jurisdiction as to issue and execution of process;
C. Jurisdiction as to review; and
D. Advisory Jurisdiction.
Constitution, Constitutional Law and Politics 399

A. Appellate Jurisdiction
The constitutional appellate jurisdiction of the Appellate Division
applies only against the judgment, decree, order or sentence of the
HCD as stated in Article 103 of the Constitution. This constitutional
appellate jurisdiction has two dimensions:
(a) Cases where appeal lies as of right; and
(b) Cases where appeal can, be made if the Appellate Division
grants leave to appeal.

(a) Under Article 103 an appeal to the Appellate Division from the
judgment, decrees, order or sentence of the High Court Division lies as
of right in the following three cases:
(i) Where the 1-ugh Court Division certifies that the case involves a
substantial question of law as to the interpretation of the
Constitution; or
(ii) Where the HCD sentences a person to death or imprisonment
for life; or
(iii) Where the High Court Division punishes a person for its
contempt.

It is stated in the last line of Article 103(2) of the Constitution that

parliament may by law add to this list other cases in which appeal as of
right may be filed.

(b) In all other cases except the abovementioned three cases

appeal shall he from the judgment, decree, order or sentence of the
HCD only if the Appellate Division grants leave to appeal.

B. Jurisdiction as to Issue and Execution of Process

This power of the Appellate Division is also called power to do
complete justice. Article 104 of the Constitution provides that the
Appellate Division shall have power to issue such orders or directions
as may be necessary for doing complete justice in any case or matter
pending before it. This power is discretionary and extra-ordinary in
nature. Th Appellate Division may use this power siio mom or on the
400 The Judiciary in Bangladesh

application of any part y . This power has not been circumscribed by

any limiting words and no attempt has been made to dcfine or describe
'complete justice. ' '1his is because any such attempt would certainly
defeat the very purpose of the conferment of such power.

C. Jurisdiction as to Review
Article 105 of the Constitution empowers the Appellate Division
to review its own judgment or order but this power is to be
exercised-
(i) Subject to the provisions of an Act of parliament; and
(ii) Subject to the rules made by the Appellate Division.

Accordingly, the Supreme Court of Bangladesh (Appellate

Division) Rules were framed by the Appellate Division in 1988.
According to this Rules, the Appellate Division may either of its own
motion or on the application of a party to a proceeding, review its own
judgment or order in a civil proceeding on grounds similar to those
mentioned in Order XLVII Rule 1 of the Code of Civil Procedure and
in a criminal proceeding on the ground of error apparent on the face
of the record (Rule I of Order XXVI) of the above Rules.

D. Advisory Jurisdiction
Article 106 provides that the President may seek the opinion of the
Appellate Division on a question of law which has arisen or is likely to
arise and which is of such nature and of such public importance that it
is expedient to obtain the opinions. There are some important features
of this advisory jurisdiction:
(i) For its advisory opinion only a question of law may be referred
to the Appellate Division and not a question of fact.
(ii) It is not obligatory on the part of the Appellate Division to
express its opinion in the reference made to it. Because it has a
discretion in the matter and may , in a proper case, for good

The Indian Constitution. of course. permits the President to seek opinion on questions
.
of both law and lact [Art. 143(2)1
Constitution, Constitutional Law and Politics 401

reasons, decline to express any opinion on ihc question

submitted to it. Such a situation may perhaps arise if purely
socio-cconomic or political questions having no constitutional
significance are referred to the court or a reference raises
hypothetical issues which it ma y not be possible to answer
without a full setting of facts.
(tii)Ihe opinion rendered is essentially in the nature of au advice
and is not binding as a judicial pronouncement and is also not
binding on the referring authority.2

The advisor y jurisdiction of the Supreme Court has its origin in the
Government of India Act, 1935 section 213 of which is almost in the
same terms as in Article 106 of our Constitution providing for
Reference to the Federal Court by the Governor-General. Similar
provision was there both in the Constitution of 1956 (Article 162) and
of 1962 (Article 59) of the then Pakistan. Constitutions of India
(Article 143), Pakistan (Article 186), Sri Lanka (Article 129) and
Mala y sia (Article 130), among other countries, bear more or less
identical provisions. The Supreme Court of Canada also exercises
advisory jurisdiction. Under section 60 of the Canadian Supreme Court
Act, 1906 the Governor-General-in-Council ma y refer important
question of law concerning certain matters to the Supreme Court for
its advisory opinion.

On the other hand, there is no pro\'ision similar to this in the US

Constitution or in the Australian Constitution. The US Supreme Court
has consistently refused to render advisory opinions on abstract legal
questions as it does not wish to exercise any non-judicial function.
Giving such an advice would involve the court in too direct
participation in legislative and administrative processes. The reason of
this reluctance is formally based on the doctrine of separation of
powers which forms one of the bases of the US Constitution. In 1793,
when Secretar y of State Jefferson wanted to know whether the
Supreme (;rnirt would give advice to the President on questions of law

2 In Re Ei ate I)uiv. AIR 1944 FC 73

26
402 The Judiciary in Bangladesh

arising out of certain treaties, the Supreme Court refused saying that
there was no such provision in the Constitution, and that it was not
proper for the highest court to decide questions extra-judicially. Again,
in Muskrat V. US' the court refused to give an advisory opinion
arguing that under the Constitution its jurisdiction extends to ' a 'case or
controversy' and so it cannot give an opinion without there being an
actual controversy between adverse litigants. In Britain, the highest
court is the House of Lords but it has no advisory jurisdiction. It is the
J udictl Committee of the Privy Council which exercises this advisory
power.
Though there are weighty arguments both for and against this
advisory power of the Supreme Court, normally it is not the function
of the court to give advice to the executive and hence the practice of
invoking advisory judicial opinions is not universally approved.
In India till 1978 seven references have been made to the Supreme
Court under Article 143(1) of the Indian Constitution. 2 In Bangladesh
during the last over 32 years since the Constitution came into force,
only one reference has been made to the Supreme Court under Article
106 of the Constitution. This was the reference of 4th July, 1995. In
the reference the President of Bangladesh asked the Appellate Division
for its opinion on the following:
(i) Whether the walkout and non-return to parliament by all
the opposition parties be construed as 'absent' form
parliament?
(ii) Whether the boycott of parliament means 'absent' from
parliament without leave of parliament resulting in the
vacation of the seats?

(19 I I) L Ed 246, 252 Ref: Jam. M.P. Indian Constitutional Law, 4th ed. P. 144
2 Seven references are following
I. in re Delhi Laws A ct in 1951. AIR 1951 SC 332
2. In )-e Kern/a Education Bill in 1958. AIR 1958 SC 956
3. in re Berubari in 1960. A IR 1960 Sc 845
4. In the Sea Customs ,lci in 1962. AIR 1963 sc 1760
5. KeshavSingh Case in 1965. AIR 1965 SC 745
6./nrc Presidential Poll in 1974. AIR 1974 SC 1682
7. The Special Court Refrence Case in 1978. AIR 1979 SC 478
Constitution, Constitutional Law and Politics 403

(iii) Whether ninety consecutive sitting days be computed

excluding or including the period between two sessions
intervened by prorogation of the parliament?; and
(iv) Whether the speaker of parliament will compute and
determine the period of absence?
Accordingly the Appellate Division after a hearing of some
prominent legal minds (amicus curia') gave its opinion.'

Politics of the Judiciary

The Image of the Supreme Court has been tarnished
It has been commented that our judiciary now faces the erosion of
credibility2 in recent years although in our historical movement at
various stages, judiciary has been a very vibrant in playing its neutral
and positive role. In the context of clashes between the executive and
legislative or betxvccn two or more organs of the executive it is the
judiciary which still continues to be an institution of 'last hope'. All the
judges of the Supreme Court, particularly the Chief justice is seen as
the one holding the most important balancing power under the
constitution. However, some recent incidents relating to interferences
by someChief justice of the Supreme Court have raised a fundamental
question of image, impartiality and credibility of the judiciary as a
whole in the country.

First, following the assumption to the office of the Chief of

Caretaker Government by Dr. Iaiuddin Ahmed three writ petitions
were filed in the High Court Division in November, 2006 challenging
his assumption of the office of Chief Advisor as it was in violation of
the provisions of the Constitution; the Chief Advisor's powers to take
decisions unilaterally without consultation with the council of advisors;
and the declaration of the election schedule prior to the correction of
the electoral rolls. When the matter was being heard for issuing rule,
the Attorney General submitted that he wished to file an application
for a larger bench to hear the matter, given its constitutional

See Special Referrence No. I of 1995.47 DLR (AD) (1995) P.111

2 Md. Asadullah Khan. Judiciar y faces erosion of credibility, Daily Star,
December 20. 2006.
404 The Judiciary in Bangladesh

importance, and the court should therefore not continue to hear the
matter. The Bench was, however, adamant to issue rule after lunch
break. A Rule Nisi is just the first stage of a motion matter, which in
the present case would have involved the court asking the Chief
Adviser to show cause why his assumption of office should not be
held to be without lawful authority. So the AG would have had ample
opportunity, even if a Rule were issued, to make a full reply, and if this
was found cogent b y the court, even perhaps to obtain a judgment in
its favour. However, the AG was insisting that even this prelumnary
order not be issued and the matter he rejected summaril y . This
difficulty was further exacerbated when the AG, accompanied b y Mr.
Moudud Ahmed and others rushed to the Chief Justice's office to
obtain an stay order. Sadl y , the Chief Justice of the Supreme Court
Sed J R Mudassir 1-lossain, in an unusual display of constitutional
power, sopped the proceeding of the Bench. The Chief Justice's stay
order came minutes before the I ugh Court bench was to issue a rule.
Shocked b y the order, lawyers and others present in the court burst
into anger and vandalised different sections of the Supreme Court, and
set fire to the vehicle of the state minister for law, justice and
parliamenraiy affairs. This step b y the Chief Justice was seen b y many
as unprecedented in the judicial histor y3. F is unprecedented that a
Chief Justice staved a preliminary order of Rule Nisi to be issued for
show cause purpose only . Although the immediate past BNP led 4
party alliance Found this as an acknowledgment of 'victor y ', it have
pulled off an unprecedented and gross manipulation of judicial
process'. The lofty image of impartiality and neutrality of the apex
court as the defender and guardian of our constitution has seriously
been hampered b y the unnecessary interference of the Chief Justice.

As a result of the above vandalisni in the judgesof the Supreme

Court started unprecedented protest by abstaining from work. They
started abstaining from work demanding apologies from I lie SC
lawy ers and punishment of vandals responsible for the vandalism at
the SC premises on November 30, that was triggered by stay order by

Commented b former Chiefjustice Mustafa Kamaj.

Sara I lossain. Bar-at-Law. Beyond Contempt. Dail y Star. 4h Dec ember. 2006
Constitution. Constitutional Law and Politics 405

the Chief justice. Subset1uentiv Barrister Omar Sadat and SC keeper

Rafic1 ul Islam filed a sedition case with the CMi"l court against 200
1avvers including eminent jurists like Dr. Kanial I lossain,
Rokouuddinn \Iahmuci, Barrister Amir-ul-Islam etc. OF vandalising the
oifiCCS of the Attorne y General and Chief Justice as well as for creating
disturbance in court proceeding on 305 November.

Second, during his tenure a good number of judges were appointed

in the Supreme Court with political consideration and th i s Chief justice
did not even protest.

ihird, on several occasions he dissolved certain benches that had

given verdicts on sensitive cases against the government. ()n june iS,
2005, a Division Bench, comprising justice Shah Abu iNaveem
i\iominur Rahman and justice idainul Islam Chowdhurv, of the I ugh
Court Division issued a rule calling upon the respondents 10 Sli()\V
cause as to wh y the holding of two constitutional posts at the same
time by CIC justice M A Aziz should not be declared to have been
Clone without any lawful authority. Interestingl y enough, within an
hour of issuance and hearing of rule, the concerned judges' writ
jurisdiction was taken away.

Fourth, in another writ Petiti on the I lCD on Nia y 24, 2005

directed the CC to collect and make public some vital information
including educational cgialiilcation, profession, source of income,
criminal records and wealth statement of the candidates for general
elections and publish the same to help voters choose their
representatives properly. In line with the I-ILl) directive the CC
prepared a three-page form for the candidates to give eight t y pes of
personal information Abu Safa hailing from Swandip filed a petition
against the directive of the 11(21) to the Chamber judge of the Al) on
july 3. 2005 but the judge asked the petitioner to tile a regular appeal in
the Al). On July 10, 2006 a regular appeal was filed by Abu Safa. On
19th 1)eccmbcr. 2006 just two da y s before nomination submission
deadline for 90 parliament the appeal was heard without any hearing
from the other sides b y a one-member vacation bench of justice jovnal
Abetlin of the Appellate Division.
406 The Judiciary in Bangladesh

On 1 March, 2007 CJ Sved R Mudassir Husain retired from

service, lie was not given any traditional farewell reception from the
Supreme Court Bar Association because of his controversial steps
taken in favour of the then PNP led four party alliance govcrnmenL
'11 is was for the second time that the SC BA refrained from according
farewell to a retiring (J. Farlicr in 1989, SCI3A also refrained from
giving farewell to the then (J AFM Munim.

l'oiloWlflg retirement of CJ Sycd JR Mudassir I fossain, Mohammad

Ruhul Arnm took over as new Chief Justice in the Supreme Court and
his role as an impartial Chief Justice is being seen as critical as former
CJ Mudassir Husain. This is because of his following interference on
the judicial process:

Firs t, the opposition leader Sheikh I lasina was arrested by the joint
forces on 16" , Jul y, 2007 and Ilicer that day a magistrate court sent her
to a sub-jail in the national parliament complex. She w a s shown
arrested in all extortion case tiled by business man Noor Au. The
government approved the case to be tried under Iinlergencv Power
Ordinance, 2007. A bench comprising Justice Shah Abu Nayeem
Mominur Rahrnan and /.uba y er Rahman Chovdhury en August 7,
granted her hail and also asked the government to repl\ Within jour
weeks wh y its approving the case to be tried under emergency rules
should not be declared illegal. However, on August 27, 2007 Sheikh
I lasina's bail ill t\V() extortion cases granted b y tile High Court
Division was staved by the full bench of the Appellate Division. In the
sameway, Khaleda /.iit's hail granted by the f ugh Court Bench was
staved by the Appellate Division. Although tile AppellateDivision has
certainly legal povcr to do so but the general people perceive the
Supreme Court as t'01 - UM of justice and it is questionable whether by
staying the bail tile Appellate Division has served justice ill a criminal
case or undermined the image of the Supreme as an impartial forum
given that it is the last resort for people to turn to with tile hope of
receiving justice.D

Second, the writ power of a Bench of the I hgh Court Division

which was discharging writ jurisdiction against government actions or
inactions b y tile government was taken away.

F-,,axi S\I Rhasrul .\lam Quddusi

Constitution, Constitutional Law and Politics 407

CIIAPTER XX

RULE OF LAW IN BANGLADESH

The term rLlle of law is used as opposed to the concept of rule of
man. The primary meaning of rule of law is that the ruler and the ruled
must be bound by the same law. No separate law or system can be
provided for the ruler.

History of Rule of Law

The history of rule of law is the history of emergence of political
liberalism from the bondage of political despotism. The study of history
of every major legal system. e.g. USA. UK , France etc. will necessarily
reveal the idea that all of them had once bitter experience of despotism.
All the despotic Kings claimed themselves to be the representatives of
God and as representatives of God they claimed themselves to be above
the law and under the cover of this design they did all the injustices and
arbitrary actions over the subjects. But gradually protests against this
despotism began to grow. In thirteenth century Bracton, a judge in the
reign of Henry Ill wrote—
"the Kin g hiinscir ought to he subject to God and the law, because law
makes him King."

This universal law (or natural law as it is sometimes called) was

attributable to God. In the seventeenth century. L.C.J Coke identified
natural law with the common law of England which he described as the
perfection of reason'. Since human reason was given by God, the
Principles of natural law were deducible by man by the use of his reason.
He, therefore, emphatically claimed that the common law must he above
the King and the Executive (i.e. the kings ministers). Thus the idea of
rule of law as of human rights, to a great extent, evolved as a result of
political absolutism since rights and freedoms of man became a slogan
against the injustices and indignities committed by tyrannical or despotic
government. As a necessary outcome of arbitrary actions by King John
there arose conflict between the King and the wealthy landowners or
barons in arms. At the climax point of this conflict they ultimately
compelled the King to accept their terms embodied in Magna Carla. This
Magna Carla was the first foundation of rule of law. Because this was the
document in the world history where for the first time we find a strong
408 RLIIC of Law in Bangladesh

protest against arbitrary punishment. it ensured the prohibition of

imposition of taxation by the King without the assent of the Great
Council and arbitrary seizure of property by Royal officials, freedom of
movement for merchants within the realm, trial by jury etc. Though this
charter was in no sense a Peoples' charter, its subsequent tradition
transformed it into a charter of English liberties, and at present it is
considered as one of the most important landmarks in the history of
human rights and free government. The famous article 39 of it says—"No
freeman might he arrested, imprisoned. dispossessed. outlawed or exiled or
harassed in any other way save by lawful judgment of his peers or 01 the law of
the land.'

Thus the charter made a principle absolute that the authority of the
King was not unlimited and arbitrary and the abuse of power might be
resisted. Later on during the long struggle for power between the king
and parliament in the seventeenth century, the parliamentary forces lastly
won throLigh the Glorious Revolution in 1688 and tile supremacy of the
parliament over the King and all other bodies was assured by the Bill of
Rights, 1689. it was now made certain that the King might be under the
law and parliament. Thus the rule of lav 1 (law made by parliament) in
place of rule by man (King) with its divine right came to be established.
In words of Sir Ivor .lennings--
"The rise of liberalism and the burden of despotic rule created popular
leaders prepared to rebel. As the liberal tradition developed on the English
principles and by French methods, many monarchs shared the Ette of !.ouis
XVI or were urged unceremoniously into retirement. It was considered
necessar\ to extend the notion and ambit of Rule of Law. It ceased to be only
a rule amon g citizens and became also a rule among rulers.'2

The doctrine of Rule of law (as understood b y Coke) had nos' to be reconciled with
the other important doctrine of' the suprenlae) of parliament. Either the law was
supreme or parliament was supreme. '[he outcome of this contention was the adoption
of the tiicor or principle that the common law was subject to such changes as the
Kin g -in-parliament must make from time to time. I lcnceforwarcl the law now regarded
as supreme law was the common law and statute law i.e. the shole of English law.
Rd. Padfield. Cohn. F. British('o,t.cruujio,, .1 lade Snip/c.
Jettitings. I vor. the Lao am! the Constitution. 5th ed. Ibid. P. 45
Constitution, Constitutional Law and Politics 409

Professor Dicey and his Theory of Rule of Law

The general conception of the rule of law or rule of law as a principle
of- constitutional government has become identified and crystallized with
professor Diceys usage of that phrase in his work 'the Law of the
Constitution first published in 1885 though the phrase has been in LISC
since at last as early as the time of Aristotle in fourth century B.C.
Professor Dice), first stated that the rule of law was one of the essential
features of the constitution of UK. He gave three meanings of the concept
of rule of' law.

1.Absence of Arbitrary Power

"Rule of law means, in the first place, the absolute supremacy or
predominance of regular law as opposed to the influence of arbitrary
and excludes the existence of arbitrariness, of prerogative or even
of wide discretionary authority oil part of the government .....a man
ma y be punished for a breach of law, but he call punished for nothing
else." I ... No man is punishable or call lawfully made to suffer in body
or goods except for a distinct breach of law established in the ordinary
courts of the land. In this sense the rule of law is contrasted with every
system of government based oil exercise by person in authority of
wide, arbitrary or discretionary powers of constraint."

2.Equality Before Law

Rule of law, in the second sense, means the equality of law or equal
subjection of all classes to the ordinary law of the land administered by
the ordinary law courts. In this sense rule of law conveys that no man is
above the law that officials like private citizens are under a duty to obey
the same law, and there call no special court or administrative tribunal
for the state officials."

3.Constitution is the Result of the Ordinary Law of the Land

The rule of law lastly means that 'with us, the law of the constitution,
the rules which in foreign countries naturally form part of a constitutional

Dicey. A.V. lou of the ( 'ouisiiiui,on. ib,1. I' 202

Ibid. I'. 189
Dice. A.V. i/oil PP. 202-3 and 193
410 Rule of Law in Bangladesh

code, are not the source, but the consequeice of the rights of individuals
as defined and enforced by the courts'.4

Dicey means by this that the general principles of the constitution i.e.
the rights of the citizens e.g., freedom of movement, speech etc. are
secured not by guaranteed rights proclaimed in a formal constitution like
that of USA, rather they are the result of judicial decisions determining
the rights of private persons in particular cases brou g ht before the courts.
Hence the constitution is the result of the ordinary law of the land, for its
general principles have evolved from the rights of individuals as upheld
by the courts in specific cases. This is in marked contrast with many a
written constitution in which the rights of the individual are declared.

Though Diceys theory has been criticsed from different angles, the
three important things—absence of arbitrary power, guarantee of citizens
right and the equality before law—over which lie made emphasis are
universally recognised as the core of traditional t theory of rule of law.

Criticism of Diccy's Exposition

Several attacks have been mounted against Dicey's exposition of rule
of law. As to his first principle lie says that there would be no arbitrary or
discretionary power. But even in Dicey's lifetime there were both
arbitrary and discretionary power in Britain and they still exist in all
governmental systems and also it is important to mention that without
arbitrary power in exceptional cases the governmental machinery woLild
remain unworkable. Preventive detention, emer g ency situation,
compulsory acquisition of goods and properties. direct enforcement of
administrative decisions etc. nieasures are common and essential for
development purposes in exceptional cases and these measures are the
best examples of exercise of arbitrary power. Again, there is a distinction
between arbitrary power and discretionary power which Dicey failed to
trace. Of course, it may be contended that 'it is still an essential principle
of constitutional government in UK that there should be no arbitrary

Dicey . A . V . Thid, I'. 203

The lheor of rule OF a\ as propon nded by l)ieev is traditional in the sense that the
concept 01: nile of I as has under g one a tremendous change in recent
Ii me wh icli has
been discussed in this chapter.
Constitution, Constitutional Law and Politics 411

power to arrest or punish. 2 But discretionary power is sometimes a must

for governmental function. For example, judges are given wide
discretionary power in granting bail, defining some crimes, explaining
laws etc. Ministers and other executive bodies are sometimes given wide
discretionary powers by the statute. Thus a minister may be empowered
by law to act as he thinks fit' or if he is satisfied. In many countries with
written constitution discretionar y powers are expressly given to the
executive e.g. in promulgating ordinances, determination of emergencies
etc.

As regards the second postulate Dicey says that there should be

equality before law and all are amenable to ordinar y courts of the land.
But this principle has many exceptions because equality before law is not
possible in every case. The king or the head of the state in other countries
are immune from both criminal and civil action, .i udges are immune from
personal responsibility for their official acts even if they might have
acted beyond their jurisdiction but not knowingly. There are also
diplomatic immunities and members of embassies are exempted from
process in English courts though not from legal liability. Members of
parliament have certain immunities from legal proceeding in respect of
some of their activities. Again, special courts are common features in all
countries. Rights and obligations of individuals are now largely decided
in many cases not by ordinary courts but by special courts like labour
tribunal, administrative tribunal, juvenile court, court martial, military
court etc. Not only that various Acts like Factories Act, Education Act
etc. have vested the executive with certain judicial powers. All these have
certainly cLirtailed the J urisdiction of the ordinary courts of law and
refuted the substance of Dicey that there is only one kind of law and one
kind of courts that exist in England.

Again, Dicey says that there should he no separate administrative

courts as in French Droit .4dminislratft He believed that the Droil
.4a'ininislrotif in France favoured the officials. But 'rule of law has no
effective contrast with ciroit ac/minisiratif for the purpose of droit
aJi;iinistratf .... is not to exclude public officers from liability for

2 Wade. I.C.S and Bradley. A.W. Consiin,iional Lair. Ibid. P.66

412 Rule of - Law in Bangladesh

wrongful acts, but to determine the powers and duties of puhlice

authorities and to prevent them from exceeding or abusing their 1o\\'erS. I

As regards his third postulate Dicey says that fundamental rights and
liberties emanate form judicial decisions. But this is one-sided view.
Because in England people have got many rights through the law of
parliament and the charters issued by the monarchs. 'l'he supremacy of
parliament is the Constitution. It is recognised as fundamental law iust as
a written constitution is regarded as a fundamental law. Various public
authorities, the Crown. the House of Parliament, the court, the
administrative authorities have powers and duties and most of these are
determined by statute not by the courts.

So it has been clear from the above discussion that the abolition of
discretionary power is not possible fully and also the equality helore law
is not possible in every case. So the concept of rule of law as propounded
by Dicey needs modification.

Rule of Law in True and Modern Sense

The concept of rule of law may he used in two senses - tarrower
sense and wider sense. In narrower sense it means that people will abide
by law and they will be governed by law only. In wider sense it means
that the government will be administered by law and under the authority
of law only: it will not do anything beyond the authority of law. Thus
what in essence means that rule of law is a government by law and not by
man. But such a definition of rule of law still remains a traditional one as
explained by Dicey. If rule of law means government by law or according
to law, then rule of law exists in every country whether it is ruled by a
king, or a military dictator or a president. Because they rule or ruled the
country according 10 law only whatever be the nature of that law. And in
this sense the government of Hitler, Mussolini, Louis XIV, Ershad of
Bangladesh (a military dictator) etc. all come under the category of rule
of law. But no man with a minimum conscience will call these
governments as rule of law. 'This is why sir .Jennings says---
"The rule ol' Ia\v in the liberal sense requires that the powers 01'01C crown
and of its servants shall he (lensed from and limited hv either lesislation
enacted ft par] iamcnl. or pudicia] decisions taken by independent courts. It is

Penn i iis. I 01'. I he /,ow (111(1 ///c ( ' ms//flu iou, 5th ed. Ibid. IT. 12 ^3 13
Constitution. Constitutional Law and Politics 413

not enough to sa y with Diee that I jialish men are ruled by the law and by
the law alone, or. in other \\ords that the poers o thc crown and its servants
are derived from the law: fur that is true even ol the mosi despotic state. The
powers or! .ouis Xlv. of Napolcon I. oil litler and of Mussolini were dcrivcd
Ironi the law, even i I' that la be onl y 'the leader may do and order what he
pleases.'

It may therefore. correctly he said that rule of law does no mean any
government under any law. It means the rule by a democratic law--a law
which is passed in a democratically elected parliament after adequate
debate and discussion. Likewise, Sir Ivor Jennings says—
'in proper sense rule of law implies a democratic system, a
constitutional government where criticism of the government is not only
permissible but also a positive merit and where parties based on competing
politics or interests are not only allowed but encouraged. Where this exist the
other consequences ol' rule of - law must lbllow."2

He says further—
"Since fundamentally it (rule of law) requires a limitation of powers.
most states have sought to attain it by written constitutions, fur such a
cOnstitution is fundamental law which limits by express rules the powers of
the various governing bodies and thus substitutes constitutional government
(in large part a synonym for the rule of law) for absolutism. It implies also a
separation of powers. since the confusion of powers in one authority is
dictatorship or absolutism which according to liberal ideas, is potential
tyranny.3

The statement of Bha g wati J. in Bachan Singh V. State of Punjafrt in

respect of rule of law is worth noting here:
'Law in the context of role of lao; does not mean an y law enacted by
legislative authoi'it . howsoe er arbitrary or despotic it may be, otherwise
even in dictatorship it would he possible to sa that there is rule of la
because every la\ made by the dictator howsoever arbitrary and

Jennings. I 'or, The Lou wet the ('oosiiiution. Ibid. PP. 47-48
2 Jennings. Ivor, 1661. PP. 60 61
Ibid. PP. 48-49
4 AIR 1982 SC 1325
414 Rule of Law in Bangladesh

unreasonable has 10 be obeyed and every action has to he taken in conformity

with such law. In such a case too even where the political set up is dictatorial
it is law that governs the relationship between men and state, but still it is not
rule of law as understood in modern jurisprudence, because in jurisprudential
terms, the law itself in such a case being an emanation from the absolute will
o! the dictator, it is in effect and substance the rule of man and not of law
which prevails in such a situation. What is necessary clement of rule of law is
that the law must not he arbitrary or irrational and must satisfy the test of
reason and the democratic form of policy seeks to ensure this element by
making the framers of the law accountable to the people."

Since the end of Second World War the principle of rule of law has
been a matter of universal discussion and endeavour bas been launched to
formulate the basic elements of rule of law. In the context of modern
development in the matters of human rights the scope of rule of law has
much widened. After the adoption of the Universal Declaration of Human
Rights, 1948, the International Bill of Human Rights, 1976, other
international covenants on human rights and also after the congress of the
International Commission of Jurists and some conferences the concept of
rule of law has come to be identified with the concept of rights of man.
Rule of law now, therefore, does not mean merely the rule by democratic
law but it essentially includes the security of life particularly the
establishment of the social, economic and educational conditions without
which democratic law, liberty, civil and political rights remain a shadow
to the people rather than substance. Because the blood-shot eye of law
can make hungry people obey the law but it cannot make them respect the
law. With this end in view the International Commission of Jurists, an
international organisation with consultative status under the United
Nations, has undertaken a series of studies which have been discussed at
successive congresses in various parts of the world. A congress was held
in New Delhi in 1959, where representatives of no fewer than 53
country's judges, lawyers and teachers of law affirmed in a formal
declaration their recognition that rule of law is a dynamic concept which
should be employed not only to safeguard and advance the civil and
political rights of the individual in a free society but also to establish
certain social, economic, educational and cultural conditions under which
his legitimate aspirations and dignity may be realized.' The Congress

Wade. Ii.C.S and Bradley. A.W. Constitutional Law. 8th ed.. P. 75

Constitution, Constitutional Law and Politics 415

through four committees, reported on the practical safeguards required

for the maintenance of the rule of law. Committee IV reports the
following:
a) The function of the legislature in a free society under the rule of law
is to create and maintain the conditions which will uphold the dignity of man
as an individual. The dignity requires not only recognition of his civil and
political right but also establishment of the social, economic, educational and
cultural conditions which are essential to the development of his personality.
h) The rule of law depends not only on the provisions of adequate
safe guard against abuse of power b y the executive, but also on the existence
of effective government capable of maintaining law and order and ensuring
adequate social and economic condition of life for the society.
c) An independent judiciary and a free legal profession are indispensable
for a free society under the rule of Jaw)

To mention more specifically the above Congress in New Delhi

adopted a Declaration - Delhi Declaration, 1959. In answers to a
questionnaire distributed to those attending, 'Respect for the supreme
value of human personality' was stated to be the basis of all law. Clearly
this is a statement in general terms about what the content of law should
or must be. Taking this as a starting point, the Declaration stated that the
rule of law involved:
i) the right to representative and responsible government (viz, the right to be
governed by a representative body answerable to the people);
ii) that the citizen who is wronged by the government should have a remedy:
iii) certain minimum standards or principles for the law. (those contained in
the Universal Declaration of Human Rights. 1948 and the European
Convention of Human Rights. 1950) including freedom of religion, freedom
of assembly and association, the absence of retroactive penal laws.
iv) theright to fair trial, which involves
- certainity of the criminal law.
- the presumption of innocence.
• - reasonable rules relating to arrest, accusation and detention pending
trial.

l Quoted by. Ban. Dr. Ershadul. Rule of Law and Human Rig/us, (a booklet in Bengali).
P. 14-15
416 Rule of Law in Bangladesh

- right to legal advice.

Public trial
the right olappcal
the absence olcrucl and unusual punishments.
v) the independence ol'thc judiciar y including proper grounds and procedure
k)r the removal o l'j udges.
The influence of Dicey's first and second conceptions can be seen in
above. His third conception was abandoned since most other countries in
the world have a 'bill of rights' on some description.

Provisions for Ensuring Rule of Law

in Bangladesh Constitution.
It has been pledged in the preamble to the Constitution of Bangladesh
that—
'it shall be a fundamental aim of the state to realise through the
democratic process a socialist society, free from exploitation - a societ y in
which the rule of law. fundamental human rights and freedom. equality and
justice, political economic and social. Ml he secured for all citizens.
In accordance with this pledge the following positive provisions for
rule of law have been incorporated in the Constitution:

1. Article 27 guarantees that all citizens are equal before law and
are entitled to equal protection of'law.

2. Article 3! guarantees that to enjoy protection of the law, and to

be treated in accordance with law, is the inalienable right of every
citizen, wherever he may he, and of every other person for the time being
within Bangladesh. and in particular no action detrimental to the life,
libert y , body, reputation or property of any person shall be taken except
in accordance with law.

3. 18 fundamental rights have been guaranteed in the Constitution

and Constitutional arrangement for their effective enforcement has been
ensured in Articles 44 and 102.

Quotvd h. I31csslv. i al n. ( 'oflsf jfl,/j ofla/ Law, (London : 111 I Publication. 1990), PP.
12- 13
Constitution. Constitutional Law and Politics 417

4. Articles 7 and 26 impose limitation on the legislature that no law

which is inconsistent with any provision of the Constitution can be
passed.

S. in accordance with Articles 7. 26 and 102(2) of the Constitution

the Supreme Court exercises the power of judicial review whereby it can
examine the extent and legality of the actions of both the executive and
legislative and can declare any of their actions void if they do anything
beyond their constitutional limits.

6. Right to be governed by a representative body answerable to the

people has been ensured under Articles 7(l). 11, 55. 56, 57 and 65(2) of
the Constitution.

Provisions of the Constitution which are Contrary to

the Concept of Rule of Law in Bangladesh
I. Independence of Judiciary
The most important condition for ensuring rule of law in a country is
the independence of judiciary. How far an independent judiciary is
essential for ensuring rule of law and how far the independence of
judiciary in Bangladesh has been ensured have been discussed earlier.
Except the mode of appointment the independence of our higher judiciary
is ensured. But the independence of lower judiciary particularly of the
Magistrate's courts is not ensured. It was not ensured even in the original
Constitution of 1972 particularly for the term 'Magistrates exercising
judicial function' in Article 115. Though provisions of Articles 115 and
116 of the Constitution of 1972 seem to ensure the independence of
lower judiciary, there is a practical problem of ensuring the independence
of Magistrates' courts. As these Magistrates' courts are run by the
executive officials and these Magistrates are promoted in executive line
they cannot take an independent view of the case before them when he
knows that his posting, promotion and prospects generally depend on his
pleasing the Executive hand. This dependence of Magistrates' courts on
the Executive has been a bar to the ensuring equality before law as
guaranteed in Article 27. (For details, see, Chapter 19).

27
418 Rule of Law in Bangladesh

2. Provisions for Preventive Oetention

Preventive detention measures can be supported only in time of
emergency. But Article 33 of Constitution allows the government to use
this measure in peace time. And in practice every government has used
Special Powers Act, 1974 as a permanent law. Since a huge number of
persons are detained every year without trial purely for political purpose,
the right to protection of law, protection of right to life and personal
liberty and safeguards as to arrest and detention as guaranteed in Articles
31, and 33 cannot be ensured. So the provisions allowing preventive
detention in peace time as provided for in Article 33 is against the
concept of rule of law. Also preventive detention in peace time is an
arbitrary power which has no place in the institution of rule of law.
3. The Provisions of Article 701
Article 70 is frustrating all positive devices in the Constitution for
ensuring rule of law.

Firstly, it is Article 70 for which the right to be governed by a

representative body answerable to the people cannot be ensured. Because
though Article 55 states, 'The cabinet shall be collectively responsible to
parliament," this provision of collective responsibility has been a
soundless vessel because of Article 70 as the cabinet is always sure that it
is not going to be defeated by motion of no-confidence, for no member of
the majority party has right to vote against the party.

Secondly, rule of law as distinguished from rule of man or party

means rule of that law which is passed in a democratically elected
parliament after adequate debate and deliberation. But because of Article
70 neither strong dissenting opinion can be made nor can vote against
party line be given by the members of the ruling party. As a result, every
bill howsoever undemocratic it may be gets quickly passed. So passing of
democratic laws is being hampered by Article 70.

Thirdly, the government always with a view to avoiding debates

makes laws by ordinances. and later gels them approved under the
sweeping power of Article 70.

For details , sec. Chapter XVI

I For details. see. Chapter VIII
Constitution, Constitutional Law and Politics 419

4. Provisions for Ordinance-making.2

Ordinance making power can be supported only in emergency
situations like national crisis, national calamity, severe economic
deflation etc. demanding for immediate legislative actions. But Article 93
of the Constitution allows the President to promulgate ordinances
anytime during the recesses of parliament sessions. And in practice a
huge number of ordinances are promulgated by-passing the parliament.
Ordinance-made laws are fully undemocratic since they are made by the
executive almost in an unrestricted way. These laws are, therefore,
contrary to the concept of rule of law.

5. Emergency Provisions
Except in war time situations declaration of emergency cannot be
supported. But Article 14IA empowers the President to declare
emergency whenever he wishes.B declaring emergency in peace time
the government can suspend fundamental rights and suppress the
opposition movement. This amounts to avowed arbitrary exercise of
power on the part of the government which is contradictory to the
concept of rule of law. (For details, see. chapter XV).

6. Administrative Tribunal
In order to provide quick relief and avoid lengthy proceedings of
litigation providing for the creation of Administrative Tribunal
particularly for service matters which needs special treatment and
experience is nothing undemocratic. But though Article 117 provides for
the establishment of Administrative Tribunal, it does not mention who
will chair this tribunal, what will be their qualification, what would be
the conditions of their security of tenure. Again, this tribunal has been
kept outside the writ jurisdiction of the High Court Division under
Article 102(5). Also it has been kept out of the supervisory jurisdiction of
the HCD. This provision has, therefore, been contradictory to the concept
of integrated .i udicial system and of independence of judiciary.
The above discussion makes it clear that though there are some
positive provisions for ensuring rule of law in Bangladesh Constitution,
they are being outweighed by the negative provisions. Moreover, the
latest development in the concept of rule of law dictates that the poor

2 For details, see. chapter XIV

420 RLIIe of Law in Bangladesh

people should have easy access to justice: providing br fundamental

rights is not enough but their enforcement is all that lflatters. lliougIi oLir
Constitution provides for 18 fundamental rights for citizens, these remain
meaningless version to the masses because he to poverty and absence of
proper legal aid the poor people cannot realise them. (For details, see,
chapter II).
Constitution. Constitutional Law and Politics 421

CHAVIiR XXI

THE EIGHTH AMENDMENT CASE AND THE

DOCTRINE OF BASIC STRUCTURE OF THE
CONSTITUTION
The case of jinwar Hussain C17mi ,(.11mr,v V . Bangladesh [1989
BLD(SPL) I] popularly known as the 8th Amendment case is a
historic judgment in the constitutional history of independent
Bangladesh.

Background of the Case

After martial law was imposed oil March. 1982, oil
May the CMLA by amending the Schedule to the Proclamation of
the 24th March. 1982 had set up six permanent Benches of the Iligh
Court Division at Chittagong, Commilla, Jessore. Barishal. SyIhet
and Rangpur. By a further amendment of the proclamation by
Proclamation Order no Ill of 1986 these permanent Benches were
designated as Circuit Benches' and it was provided that when
Article 100 of the Constitution would be revived, the Circuit
Benches should he deemed to be sessions of - the I lCD at Dhaka
under that Article I Martial law was withdrawn on 10th November,
1986 and the Constitution was fully revived on the same date. As
the Constitution was revived the Proclamation Order Ill of 1986
was no lon g er operative and the Chief Justice under the revived
Article 100 in consultation with the President, proceeded to
implement the provisions of six sessions benches in the same places
where Circuit Benches were functioning during the martial law
period. The Chief Justice issued six other notifications speci1ving
the jurisdiction to he exercised by each session and the areas
covered by them.

To he mentioned here that the Dhaka Bar Association led b y the

Supreme Court Bar Association began to protest the mode of

Hie oricinal Article 1000 was dlowing

100. I he perinaneiil scat oF the Supreme Court. shall he in the capital. hut Sessions ol
the II ph Court I )ivisioii may be held at such oilier place or places as the ChieF Justice
na y mth the approval o l the President. Irom time to time appoint.
422 Doctrine of Basic Structure and 8uIi Amendment Case

decentralization of the I-lCD from the very day the Martial law
Proclamation was made to this effect. The Supreme Court Bar
Association construed the bifurcation plan of the IICD as totally
unjustified and a design to destroy the institution ofthejudiciary. In
protest they boycotted the courts for months, passed resolutions and
staged demonstrations. openly accusing the Chief Justice of
violating the provisions of the Constitution by constituting the
benches and session outside Dhaka. The Court of Chief Justice was
boycotted for years and the Chief Justice did not sit in any court for
nearly three years. The judiciary was paralysed which diminished
the image and prestige olthe judiciary as a whole.'

However, when the Chief Justice issued under the revived

Article 100 six other notifications specifying the jurisdiction to be
exercised by each session and the area covered by them, it added
fuel to the fire and the lawyers became more agitated. Perhaps with
a view to stopping this agitation and movement the government
passed the Constitution (Eighth Amendment) Act. 1998 which
substituted Article 100 by a new article creating permanent Benches
of the High Court Division in the six aforesaid places.

For details. see. Ahmed. Moudud. De,nocraci unci the CIio!leoce of I)eveIonnent.
Ibid. P. 276
Article 100 as amended b y the 8th Amendment Act runs the ful lowing
100. Scat of the Supreme Court
Subject to this Article, the permanent seat of' the Supreme Court shall he in the
capital.
(2) The II igh Court Division and the judges thcreof'sliall sit at the permanent scat of
the Supreme Court and at the seats of its permanent Benches.
(3) The I ugh Court Division shall have a permanent Bench each at Barishal.
Cliivagong. Comilla. Jessore. Rangpur and Sylhet. and each permanent Bench shall
have such Benches as the Clii e I' Justice may dctenii i ic lioni time to time.
(4) A permanent Bench shall consist of such number of - judges, of the High Court
Division as the Chief .lustice may deem it necessary to nominate to that Bench from
time to time and oil nomination the judges shall be deemed to have been
transferred to that Bench.
(5) The President shall. in consultation with the Chief Justice, assign the area in
relation to which each peniiancnt Bench shall have jurisdictions, powers and functions
conferred on the I ICI) b y this constitution or an y other law: and the area not so
assigned shall he the area in relation to which the I ICI) sitting at the permanent seat of
the Supreme Court shall have such jurisdictions, powers and functions.
(6) The Chief .lustice shall make rules to provide liar all incidental, supplemental or
consequential matters relating to the permanent Benches.
Constitution, Constitutional Law and Politics 423

The Constitution (8th Amendment) Case

By two writ petitions the amended Article 100 and the
notification of the Chief Justice were challenged as ultra virec. A
Division Bench of the HCD dismissed the petitions summarily.
Leave was granted by the Appellate Division to consider the
Constitutionality of the Amendment. After a sound hearing the
Appellate Division by a majority of 3 to I struck down the 8th
Amendment as far as it related to the creation of permanent
Benches outside Dhaka by substitution of Article 100. The ground
shown by the court was that the impugned amended Article 100
changed the character and nature of the function and jurisdiction of
the 1-lCD as envisaged in the Constitution. Such an amendment
changing the basic structure of the Constitution was ulira vires and
therefore not tenable in law.

This was a historic judgment in the sense that it was the first
time since the birth of the nation that the Supreme Court of
Bangladesh was striking down on amendment to the Constitution
made by the parliament, the supreme and sovereign law making
body under the Constitution. The judgment aroused serious
controversies on the issue of parliaments' authority to amend the
Constitution and whether the Supreme Court could restrict the
amending power of the parliament. And whether four or five judges
sitting on a Bench coLild be more wise or have more authority than
the 330 members of parliament elected by the people.'

Principal Arguments on Behalf of the Appellants

The unitary character of the Republic is a basic feature of our
Constitution and the plenary judicial power of an integrated
Supreme Court completely in line with the unitary character of the
Republic is also a basic feature of our Constitution which cannot be
altered or damaged. The power of amendment of the Constitution
under Article 142 is a power under the Constitution and not beyond
it and it is not an unlimited power. The concept that parliament has
unlimited power of amendment is inconsistent with the concept of
the supremacy of the Constitution embodied in the preamble and

Ahmed- Moudud. Democracy and the (ha//cage of Development, Ibid. P. 277

424 Doctrine of Basic Structure and 8" Amendment Case

Article 7 of the Constitution. The impugned Amendment being

contrary to the concept of integrated judicial system and unitary
character of the Republic has destroyed these basic features.'
Argument by the State
Article 142 of the Constitution provides that any provision of
the Constitution can he amended by way of addition, alteration,
substitution or repeal by an Act of Parliament. This amendment
proceeding is a special one since such an Act can be passed only by
two-thirds of the total number of MPs. So the parliament has
unfettered power to amend any provision of the Constitution; there
cannot be any implied limitation of parliament's power of
amendment of the Constitution. The power of amendment under
Article 142 is a constituent power: not an ordinary legislative
power.

The amending power of the parliament is in no way limited or

otherwise controlled by some vague doctrine of repugnancy to the
preamble and Article 7 declaring the supremacy of the Constitution.

The independence of judiciary and separation of powers are

basic Iatures of our Constitution but the impugned amendment has
not affected either of the two.2

The main issues to be decided by the court were, therefore, the

implied limitation of power of amendment of the Constitution,
difference between legislative power and constituent power. the
meaning of the term 'amendment' and the 'basic structure' doctrine.

The Principal Arguments of the Judgment

1. The Constitution stands on certain fundamental principles
hicli arc its structural pillars which the parliament cannot amend
b y its amending power for, if these pillars are demolished or
damaged, then the whole constitutional edifice will fall down.
Some of the basic str:ctures are:

Suhinicsion of I )r. kaiiial I Iosssai n. Ishti aq Ahmed. Arnir-t I Islam. Sec B I I)(SPI ) I
19SQ. I111.23-36
Submission ofAttonicv (Iciicral. See. Ibid.. PP. 37-40
Constitution. Constitutional Law and Politics 425

(i) Sovereignty belongs to the people.

(ii) Supremacy of the Constitution.
Democracy.
(iv) Republican government.
(v) Independence of judiciary.
(vi) Unitary state.
(vii) Separation of powers.
(viii) Fundamental rights.

These structural pillars of the Constitution stands beyond any

change by amendator y process. If by exercising the amending
power these principles are curtailed it is the courts duty to restrain
it. The amended Article 100 has created more than one permanent
seat of the Supreme Court thus destroying the unitary character of
the judiciary: the transIrabiI ity of judges has a likely effect of
jeopardising the independence of the judiciar y , a basic featLire of
the Constitution. And the amendment has resulted in irreconcilable
repugnancies to all other existing provisions of the Constitution
renderin g the Hi g h Court Division virtually unworkable in its
original form)

2. The amended Article 100 is uli,', vii-es because it has

destroyed the essential limb of the judiciary namely, of the SLtpreme
Court of Bangladesh by setting up rival courts to the High Court
Division in the name of permanent Benches conferring fill
jurisdictions, powers and functions of' the liigh Court Division.
Besides this, this amended Article is inconsistent with Articles
44.94, 101 and 102 of the Constitution. The Amendment has
reduced Articles lOS, 109, 110 and Ill nugatory. It has directly
violated Article 114. The Amendment is illegal because there is no
provision of transfer of cases from one permanent Bench to another
Bench which is essential requisite for dispensation ofjustice,

3. If any provision can be called the 'pole star' of the

Constitution. then it is the preamble. The impLigned Amendment is
to be examined oil touchstone of the preamble with or without

989 R!.I) (SN)1 Per Sahulmddiii Ahmed. J.Para. 376. 377. 378
2 Per fl3drul I laider Chowdhur y . .J. Para. 259
426 Doctrine of Basic Structure and 8th Amendment Case

resorting to the doctrine of basic structure. The preamble is not only

a part of the Constitution, it now stands as an entrenched provision
that cannot be amended by the parliament alone. When parliament
cannot by itself amend the preamble, it cannot indirectly by
amending a provision of the Constitution impair or destroy the
fundamental aim of our society. One of the fundamental aims of our
society is to secure the rule of law for all citizens and in furtherance
of that aim part VI and other provisions were incorporated in the
Constitution. By the impugned Amendment that structure of the
rule of law has been badly impaired and as a result the High Court
Division has fallen into sixes and sevens—six at the seats of the
permancnt Benches and the seven at the permanent seat of the
Supreme Court)
The above quotations from the judgment make it clear that the
centre-point on 'which the majority judges relied to declare the
impugned amendment illegal was the doctrine of the basic structure
of the Constitution.
The Doctrine of Basic Structure
Now what is meant by the doctrine of basic structure of the
Constitution? This doctrine is not a well-settled principle of
constitutional law: it is rather a recent trend in and a growing
Principle of constitutional jurisprudence. As M. H. Rahnian. J. says
in the 8th Amendment case that the doctrine has developed in a
climate where the executive, commanding an overwhelming
majority in the legislature, gets snap amendments of the
Constitution passed without a Green Paper or White Paper, without
eliciting any public opinion, without sending the Bill to any select
committee and without giving sufficient time to the members of the
parliament for deliberation on the Bill for amendment.2

The initial trace or origin of the concept of basic structure of the

Constitution can he found in the Sub-Continent, as Dr. Kamal 1-lossain
submitted in the 8th Amendment case, in a decision of the Dhaka High
Court (A bdul Haque V Faziul Quder ('howdhwy r PLD 1963 Dac. 669).
Ibis decision was upheld by the Pakistan Supreme Court in Faziul quder
Chovi'dhurji' V. Abc/i,! Haque (PLD 1963 SC 486) where the court held—

Per M.H. Rahmau. J. Paras. 388. 443. 456

Para. 435
Constitution, Constitutional Law and Politics 427

Franchise and form of government are fundamental ieatures_of'

Constitution and the power conferred upon the Presidency b> the constitution
ol' Pakistan to remove difficulties does not extend to making an alteration in
a fundamental feature of'the Constitution.

But in its development or nourishing stage in Indian jurisdiction the

first formal judicial formulation of this doctrine came out in
Kesavanunclu's case. Before Kesavanana'u's case the issue of basic
structure came to be applied indirectly in Go/ak Nat/i's case where it was
decided that parliament had no power to amend fundamental rights so as
to take away or abridge any of them. Subba Rao, C.J. said that
fundamental rights are assigned transcendental place under our
Constitution and, therefore, they are kept beyond the reach of parliament.
This judgment gave rise to acute controversy. It was apprehended that the
fundamental rights in the Constitution would become static creating
hindrances in the wa y of enactment of socio-economic legislation
required to meet the needs of a developing society.
To get over this problem created by Golak Nut/is case the Indian
Parliament passed the Constitution (24th Amendment) Act, 1971 which
laid down that parliament might in the exercise of its constituent power
amend any provision of the Constitution be it of fundamental rights or of
any other one.
The validity of the Constitution (24th Amendment) Act. 1971 and the
25th Amendment Act which curtailed the power of judicial review was
challenged in Kesavananda Ijliarati V . Slate of Ke,-aIa 2 popularly known
as the Fundamental Rights case. The court by majority overruling the
Go/ak Nat/i's case held that the parliament had the power to amend any or
all the provisions of the Constitution including those relating to
fundamental rights but this power of amendment was subject to certain
implied and inherent limitations and that parliament could not amend
those provisions of the Constitution which affect the basic structure or
framework of the Constitution.
The next case in which the Indian Supreme Court had occasion to
apply the Kesavananda princile as regards the non-amendability of the
basic features of the Constitution was Indira Nehru Gandhi V . Raj
Narc.'ya7 3 popularly known as Election case. Here was involved the

Golok Auth V State of J'unjah AIR 1967 SC 1 643

AIR 1973 SC 1461
AIR 1975 SC 2299
428 Doctrine of Basic Structure and 8111 Amendment Case

question of the validity of the Constitution (39th Amendment) Act. 1975

which took away the power of an y court and also of the Supreme Court
to decide any doubts and disputes arising in connection with the election
of four high officials of the State viz, the President, Vice President, Prime
Minister and Speaker.' Following Kesat'anwula's principle the court held
that the impugned Amendment affected and destroyed certain basic
strLlctures ol the Constitution e.g. democracy which implies the principle
of free and fair election: rule of law and judicial review. It was also held
that parliament in the exercise of constituent power was not competent to
validate an election declared void by the High Court. In this case
Chandrachnd. CJ. said that the fundamental rights, being a part of the
essential of the Constitution could not, therefore, be abrogated or
emasculated in the exercise of the power conferred by Article 368,
though a reasonable abridgment of those rights could he affected in the
public interest.2

The Indian government became firious with the Supreme

Courts judgment in Inc/ira Gain/Iii's case declaring clause 4 of 39th
Amendment invalid and it came forward to ensure that never in
future the courts should have the power to pronounce a
constitutional amendment invalid. Accordingly. the 42nd
Amendment of the Constitution was enacted providing for that, 'no
constitutional amendment (including the provision ol'part III i.e. the
fundamental rights) ... shall be called in question in any court on
any ground". and also that "there shall be no limitation whatsoever
on the constituent power of parliament to amend by way of
addition, alteration, variation or repeal of the provisions of' the
Constitution". The Amendment, therefore. made it clear that even

In 1971 S nit. Indira Gandhi's election was declared invalid b y the l:lcct on Tribunal on
the ground that she had adopted conupt prilctices in thc election. t)uring the pendenc
of her appeal ill Allahahad I ugh Court the parliament by 39th Amendment inserted
Art i etc 329A( 4) and (5) II the Constitution. It '. as providcd hi' the aIlleIldInCIlt that
henceforth the parliament svou Id decide an y dispute as to the election of' above tour
persolts: that the existm g lass in this re gard would not apply to the election of them:
and that the disputed election iii Indira Gandhi vas valid and the election petition
ag ainst her abated. I 'his /uneiidinent Was ratified ill three da ys durin g a period of
emer genc y 'hen I reedom (4 speech I\'1S suspended and there was inardli' am time
tie (or
the debate in the constitutional implications of' that Amendment. (I I.M.' Seervai.
(ons(iin,iiwuil l.n,ut of Iii, flu, 3rd ed. Vol. I. I'I'. 2659--2660
AIR 1975 SC 2299 I'. 2461
Constitution, Constitutional Law and Politics 429

the basic feature of the Constitution could he amended by

parliament. As a commentator puts it purported to kill the child
basic structure'.

However the validity of this 42nd Amendment was challenged

in Minen'a Mills Lid V. Union of india. 2 The scope and extent of
the application of the doctrine of basic structure again came up for
discussion before the Supreme Court in this case. The Supreme
Court unanimously held the Amendment as unconstitutional
trans gressin g the limits of the amending power and damaging or
destroying the basic structure of the Constitution. The court said
that the parliament had only a limited power which itself is a basic
lèalure of the Constitution and the donee of a limited power cannot
by the exercise of that power convert the limited pocr into an
unlimited one. In other words, the parliament cannot expand its
amending power so as to acquire for itself the right to repeal or
abrogate the Constitution or to destroy its basic and essential
features: power to destroy is not a power to amend, Mr. N. A
Palkivala has remarked that this decision has rekindled the light of
the Constitution of India.

This proposition that parliament cannot amend the Constitution

so as to destroy its basic features was again reiterated and applied
by the Supreme Court in Wainan Rao V. Un/a,, of India.3

Thus the doctrine of 'basic feature' has successfully passed the

acid-test in almost 5 cases in India and has already attained its firm
footing in Indian Constitutional jurisprudence though there still
remains controversy as to the substance of this doctrine. And the
Bangladesh Supreme Court in the 8th Amendment case has
followed the Indian decisions as regards the doctrine of basic
structure.

Para' I)i.in and Rum Rajput. ( <msf,g,,Ju,,, o//,u/j ,, 1977. P

- .•\IK I9(JSC 1789
.IR 1980 Sc' 17 8 9
430 Doctrine of Basic Structure and 8Ih Amendment Case

Problems of the Doctrine of Basic Structure

As has been mentioned just now that there still remains a
considerable controversy and differences of opinion as to the
substance of the doctrine of 'basic structure'. Because what actually
is meant by the doctrine?, What subject-matters will come under
the category of 'basic feature'?, Which particular features of a
Constitution are basic and which are not ? These are the questions
which are still haunting both the judges and researchers. In
Kesavanan(la case Sikri C.J. says that the basic structure of the
Constitution consists of the following features-
i) Supremacy of the Constitution.
ii) Republican and democratic form of government.
iii) Secular characteristic of the Constitution.
iv) Separation of powers between the executive, legislative and
judiciary.
v) Federal character of the Constitution.

According to Shelat and Grover J.J. the following are the

examples of the basic structure of the Constitution:
i) Supremacy of the Constitution.
ii) Republican and democratic form of government and
sovereignty of the country.
iii) Secular and federal character of the Constitution.
iv) Demarcation of power between the legislative, executive
and Judiciary.
v) Dignity of individual security by various freedoms and basic
rights in part III and the mandate to build a welfare state
contained in part V.
•vi) Unity and integrity of the nation.

In Indira Gandhi's case the following features were termed as

basic:
i) Rule of law.
ii) Judicial review.
iii) The principle of free and fair election as a principle of
democracy.
iv) Jurisdiction of the Supreme Court under Article 32.
Constitution, Constitutional Law and Politics 431

In Minert'a Mills case the Supreme Court held that the

following are the basic features of the Constitution:
I) Limited power of parliament to amend the Constitution.
ii) Harmony and balance between fundamental rights and
directive principles.
iii) Fundamental rights in certain cases.
iv) Power ofjudicial review in certain cases.

Likewise in 8th Amendment case of Bangladesh the judges

could not come into an unanimity as to what constitute 'basic
feature' of the Constitution. According to B. H. Chowdhury J. 21
features are basic features of our Constitution.' Justice Sahabuddin
Ahmed has mentioned six features as basic which have been
mentioned earlier.

Of course, like the concept of 'basic feature' there are many

concepts which are not capable of precise definition, nevertheless
they exist and play important part in law. Negligence,
reasonableness, natural justice are some of these concepts which are
very much understood but cannot be precisely defined.

Again, the Constitution of some countries specifies 'basic

features' of the Constitution categorically. For example, the
Constitution of Germany mentions in Article 79(3) that the
amendments of the basic law (Constitution) affecting the following
matters shall be prohibited meaning that these are basic features:
i) the division of the Federation into Laender (states).
ii) the participation on principle of the Laender in legislation.
iii) the basic principles as laid down in Articles I and 20'

Para, 254
Article I deals with the following things as to the protection of human dignity
The dignity olnian is inviolable. To respect and protect it shall be the duty Of all
public authority.
ii. ftc German people therefore uphold human rights as inviolable and inalienable
and as the basis of every cdmmunit y, of peace and -Justice in the world.
Article 20 deals ith the t'ollowing things as to the political and social structure.
deIinse of the Constitution
i. The Federal Republic ot Germany shall he it democratic and social ldcral state.
8th
432 Doctrine of Basic Structure and Amendment Case

Likewise Article 89 of the French Constitution sa y s that 'the

republican form of government shall not he an object of
amendment.
If there is such categorical specification in tLic Constitution as to
its basic features the court is not to fall into any precarious situation
but since most of the written Constitutions are silent about their
basic features, the courts in these cases have to assume basic
features under the umbrella of the doctrine of 'basic feature' of the
constitution. Though the doctrine is still a moot question, it has
already been a basis ofsome important constitutional judgments in
India and Bangladesh and in an unhappy fight between the
executive and judiciary the latter has been able by using this
doctrine to establish constitutional supremacy. In this sense this
doctrine may be comparable to the doctrine of judicial review as
expounded by Marshall C. J. Someone says that this doctrine of
basic feature appears to be all of the doctrine of judicial
review. 1 Marshall held in Mu,-burv V. Madison that the court, in
exercise of its judicial functions, had the power to say what the law
was, and if it found an Act of Congress conflicted with the
Constitution. it had the ditty to say that the Act was no law. Though
the decision of Marshall C.J. is still being debated, the principle of
judicial review has received a wide acceptance not only from the
superior courts to the countries that are under the influence of
common law but in civil law countries as well.

ii. All public •nithoritv clilanaics fi-iun the people. It shall he exercised by the people
through elections and rclrendtiins and b specific leislaii%'e. ecciith and
judicial bodies.
I he Ieislaturc shall he bound b y the constitutional order, the cxeeutite and
juthciar b lim and justice.
1l ( ennaius hzi% c the ri ght to resist auu hods :uucInptint to do :nta %ith this
L)USI itul joutal order. should no other rcnued he possible.
II. K.ahtnan I. in X1h .innduuient Case. Para. 4X
I No- I cr.indi I 1
Constitution, Constitutional Law and Politics 433

Philosophy Underlying the Doctrine of

Basic Structure
One might argue that this doctrine is vague and should be
rejected. But S. Ahmed. J. in 8th Amendment case says that the
doctrine of basic structure cannot be rejected if consequences of its
rejection is taken into consideration. Seervai in his Constitutional
Law of India, V ol.11, Page 1568 rightly observed that the
consequence of rejecting the doctrine of basic structure would be so
grave and so opposed to the objectives of the Constitution that the
consequence of uncertainty would be insignificant by comparison.
Actually there are some sound philosophical rationales which work
behind this doctrine.

1. A Constitution like a sacred document is made written with a

formal declaration by a democratic assembly especially constituted
on behalf of the people for this purpose necessarily with a view to
keeping its supremacy as a lofty idealism for a nation. Every written
constitution, therefore, has certain fundamental principles and
objectives which are its structural pillars and on which the whole
edifice of the constitution is erected and if these principles are taken
away or destroyed, the Constitution will lose its original and
inherent identity and character.

2. The parliament being a creature of the Constitution must

exercise its powers within the constitutional bounds and limits. It,
therefore, cannot enlarge its limited power into an absolute power
to destroy its basic elements. If parliament had the power to destroy
the basic feature of the Constitution, it would cease to be a creature
of the Constitution and become its master. Moreover, a Constitution
which is formally declared as a sacred document and as the guide
for the nation can, in no way, be considered as an object of rapine
and plunder at the hand of the parliament. As S. Ahmed. J says in
8th Amendment case, 'the doctrine of bar to change the basic
structure is an effective guarantee against frequent amendments of
the Constitution in secretarial or party interest in countries where
democracy is not given any chance to develop.'

3. The declaration of constitutional supremacy as opposed to the

parliamentary supremacy in the Constitution Implicitly presupposes
434 Doctrine of Basic Structure and 8th Amendment Case

the existence of an independent court or authority to examine the

constitutionality of actions done by the executive and legislative.
Though the judiciary like parliament is also the creature of the
Constitution, it is the Constitution which at the same time gives,
somewhere directly and somewhere indirectly, this judiciary the
power to play the role of an umpire - to see that the executive and
legislative are not transgressing their constitutional limits. This is
why the judiciary under a written Constitution is called the guardian
of the Constitution.

Types of Doctrine of Basic Structure

On the basis of treatment given by judges over basic structure'
principle both in Bangladesh and India, it would, for the
convenience of research and study, be appropriate to use this
doctrine in two senses
I. Basic structure principle in general sense or numerable sense;
and
2. Basic structure principle in real or substantive sense.
Most of the judges so far have treated this doctrine from
numerative point of view. Some judges say that there are 21 basic
structures; some say for 6; again some says that there are 3 and so
on. This is why no unanimity can be found among the judges as to
the substance of this doctrine. If this doctrine is meant from this
general or numerable sense then there are some dangers:

Firstly, any provision of the Constitution may come, if jud ges so

interprets, under the umbrella of this doctrine giving rise to vagaries
of clashing principles.

Secondly, this will give rise to differences of opinion among the

judges which has been seen in every case upholding 'basic structure'
doctrine.

Thirdly, the judiciary may, by applying any provision under the

umbrella of 'basic feature' principle, reduce or narrow down the
justifiable scope of amending power of the parliament. And the
absolute judicial dictation, in other words, the whim of judiciary
Constitution. Constitutional Law and Politics 435

may take the place of constitutional limit in respect of amending

power of the Constitution.

Fourthly, in some cases the judgment of the court will be

reduced into nullity reducing uItimely the dignity and institutional
value of the Judiciary as has been the case of the judgment of
Badrul llaider Chowdhury in 8th Amendment case. In his judgment
he mentioned the then Articles 48 and 58 of the Constitution to be
the basic features of the Constitution. These articles then provided
for direct election of the President in presidential form of
government and the selection by the President of a member of
parliament as Prime Minister who commands the support of the
majority. These Articles, he said, are protected. However, within
two years from this judgment, after the general election in February,
1991 the then Articles 48 and 58 amplified as a 'basic feature' by
B.H. Chowdhury J. were substituted by the Constitution (Twelfth
Amendment) Act, 1991 replacing the presidential system of
government with parliamentary one. Had he, therefore, mentioned
'democracy' instead of these two 'specific articles as 'basic feature',
his judgment would have been more authentic, logical and
meaningful. This is because democracy is a philosophy as well as a
goal of our nation as embodied in the preamble of the constitution.
So 'democracy' should be a basic feature which has, in reality, no
contradiction with the presidential or parliamentary form of
government.

Thus with a view to avoiding the above mentioned dangers and

also allowing it to grow as a sound principle of Constitutional law
both the judges and researchers should take the 'basic structure'
principle in a special sense rather than in general or numerable
sense. In special sense or in real or substantive sense the doctrine of
'basic structure' means those fundamental principles and objectives
of the Constitution which are its structural pillars and on which the
whole edifice of the Constitution is erected and ii these principles
are taken away or destroyed, the Constitution will lose its original
and inherent identity and character. So if it is found that a
Constitutional amendment made by parliament has affected or is
likely to destroy any of the basic features of the Constitution, then
the amendment should be declared unconstitutional and void. And
in this substantive sense the doctrine necessarily indicates and
436 Doctrine of Basic Structure and 8 1 " Amendment Case

means the 'preamble of the Constitution. This is because it is the

preamble which, in the way of embodying philosophy of the
Constitution, contains the fundamental principles and objectives as
fundamental aims or goal of the notion. Taking the preamble as a
guiding star, or touchstone or centre point judges should explain
and nourish the doctrine. It is pertinent to mention here that Justice
Muhammad Habibur Rahman in 8th Amendment case specifically
and with emphasis meant 'preamble' of the Constitution as the pole
star in relation to the doctrine of'basic structure'.
Constitution, Constitutional Law and Politics 437

CHAPTER XXII

MARTIAL LAW AND MILITARY

INTERVENTION: A POLITICO—LEGAL
ANALYSIS
Origin and Development of the Concept of Martial Law
From historical point of view the origin of the modern concept of
martial law traces back to the court of the Constable and Marshal which
was a part of Curia Regis or the Supreme Court established in England in
the middle age by William, the conqueror. The Kings Marshal or the
Constable or to use the modern designation, the Master of the Horse. was
the commander-in-chief of the King's army. Law administered by the
Kin g s Marshal through its court of Constable and Marshal was known
invariably 'Marshal law and this term gradually came to he spelled
martial law' what we say today. This Marsha] law was something apart
from common law of England. The King on the advice of his Marshal
used to issue orders and re gulations for suppressing riot, or rebellion and
also for governing the conduct and discipline of officers and soldiers.
These orders and regulations came to be known as martial law. This
martial law administered by the Constable and Marshals court was
applied in the following cases

I. Administering army and governing the conduct of and discipline

within the soldiers and their officers and also for imposing penalties over
them in appropriate cases. It is to be mentioned here that till 18th century
this law relating to soldiers was known as martial law. But hencefirth it
came to be known as military law and at present this is what we call
military law.

2. In case of insurrection, riot or rebellion or breaches of peace

within the realm the King used to command his Marshal to suppress
those by applying martial law. The Marshal, therefore, applied martial
law in such cases and martial law being so imposed the ordinary common
law along with ordinary court became sLLspended; under martial law the
solders might do anything to suppress riot, kill, execute or slaughter as in
battle. But as soon as the disturbance was over the common law along
with ordinary courts were revived. This was actually a royal prerogative
or, in other words, the common law right of the Crown to repel force by
438 Martial Law and Military Intervention into Politics

force in the case of invasion, insurrection, riot etc. But gradually it

became evident that the Crown began to abuse this prerogative. It was
found that even in cases of persons who were merely guilty of ordinary
felonies and who, therefore, were to he tried under common law in
ordinary courts, were ordered to be tried by martial law. Again, instead of
maintaining discipline and order in the army martial law was applied to
punish any crimes committed either by soldiers or civilians associated
with them which ought to have been done legally under common law in
ordinary courts. It was also evident that even after the disturbances or riot
for which martial law and Marshal Court were applied, had been over,
the Marshal Court (Military Tribunal in modern sense) was retained and
were applied to punish citizens for subsequent offences) Thus as
Cockburn C.J. says, 'the prerogatives of the Crown was often attempted
to be stretched beyond its proper limits. 2 This frequent abuse of martial
law in time of peace was lastly prohibited by the British Parliament by
the celebrated Petition of Rights, 1628.

Since 1628 martial law has never been attempted to be exercised in

the realm of England by virtue of the prerogative either in time of peace
or of war. So now, after 1628 the right to declare martial law in peace
time came under the parliament's authority. And under the authority of
parliament only three times martial law was imposed in England to
suppress riot and insurrection. This was done on three different occasions
during the rebellions of 1715, 1745 and 1780. And henceforth till today
no martial law was declared in England even under the authority of
parliament.

It is noteworthy that during the first and the second World War the
British Parliament passed enactments like the Defence of the Realm Act
1914-15 and the Emergency Power (Defence) Acts 1939-1940 giving the
executive wide discretionary and military powers to meet the emergency.
There may he controversies as to whether this enforcement virtually
amounted to an application of martial law. But these were not martial law
as such, because, firstly, the Defence of the Realm Act did not authorise
to declare 'martial law' and secondly, though initially the law gave his

I Cod, jt/j/Uarv forces of the Crown Vol. 1. P. 18 (1889)

Quoted by. Munini F.K.M.A. Legal Aspects of Martial Law, (Dhaka: Bangladesh
Institute of law and International Aftairs. 1989). P. 12
2 Rex V. Nelson & Brand. Quoted. Ibid, P. 13
Constitution, Constitutional Law and Politics 439

Majesty-in-council the power to make regulations and provided that

offenders should be tried and punished by court martial for breaches of
such regulation, the law was later oil which authorised civil
courts instead of courts martial to try breaches of the aforesaid
regulations. So the jurisdiction and functioning of the ordinary courts
were not suspended. Likewise, the power under the Emergency Power
(Defence) Act did not amount to martial law because, ordinary COLIrtS
were not suspended; persons violating regulations were to he tried not by
any court martial but by special courts which were essentially civil
courts.

Actually these measures were national emergency measures and it is

established beyond any doubt that the Armed Forces may be legally
empowered under any grave emergency by an Act of parliament to render
such assistance as may be deemed essential to ensure the restoration of
order.

Different Meanings of Martial Law

The above discussion makes it clear that the concept of martial law
had its origin and development in British system but in true sense of the
term there is no martial law in Britain for last three centuries, Then in
which sense does martial law exist in Britain? Before answering this
question first we should see in what different senses the term 'martial law
is used. The term 'martial law' may be used in the following four senses.

Firstly, in earlier times 'martial law was used to mean what we now
call military law, the law for the discipline and government of the armed
forces. It had this connotation up to the latter part of the eighteenth
century. Prior to that period, no distinction was made between the
military law and the martial law of the present day as they had a common
historical origin in the law, that had been administered in medieval
England in the court of the Constable and the Marshal.
Secondly, the term 'martial law 2 is commonly used in the sense of
'military government in occupied foreign territory in time of war. Martial

1 Munim, F.K.M.A. Ibid, P. 44-45

2 Distinction Between Martial Law And Militar y Law
(i) Military law is a body of special laws and regulations governing the Army. the
Navy and the Air Force. So military law is composed of three types of positive laws---
Army law Navy law, and Air Force law. 'l'his law is applicable to members of the
440 Martial Law and Military Intervention into Politics

law in this sense of military government is quite outside the ambit of

municipal or constitutional law; it is rather a subject matter of
international law.
Thirdly, martial law is used to mean the deployment of troops in aid
of and under the discretion of the civil authorities to suppress riot,
insurrection or other disorders, in the realm without the proclamation of
martial law. It is to be noted that the right to enlist the support of the
military forces by the civil authority in its effort to restore order is
common to the law of every civilised country. This right of the executive
cannot be properly called 'martial law. It seems that, for the lack of an
alternative name the expression 'martial law is used to mean the use of
military forces in the aid of the civil authorities in suppression riots or
other public disorders.' if it is to call a kind of martial law, then the
author thinks it more convenient for the purpose of research and study to
describe it martial law in universal sense. In Britain martial law exists
only in this sense.

Fourthly, martial law means that kind of law which is generally

promulgated and administered by and through military authorities in an
effort to maintain public order in times of insurrection, riot or war when
the civil government is unable to function or is inadequate to the

aforesaid forces in peace as sveil as in war. For example. in Bangladesh the Army Act.
1952 the Naval Discipline Ordinance. 1961 and Air Force Act. 1953 are military laws.
On the other hand. martial law is not any positive law as such: it is basically a
condition of affhirs in which absolute power for the purposes of suppression of
insurrection or resistance or invasion, is assumed hs the militan r authorities who are
temporarily placed above the ordinary law and are not amenable to the jurisdiction of
the civil courts. Of course. it ma\ be said that martial law is a body of regulations and
proclamations issued by the Martial Law Administrators.
(ii) The object of military law is to regulate disciplineinc and administration within the
soldiers whereas the object of martial law is to suppress rebellion. insurrection or riot
by using lbrce.
(iii) M il itar) law is executed through court-martial a kind of ' tribunal iii which those
who violate the military law are commonly tried. But martial law is executed by
Martial law courts. M ii itary Tribunal. Special or Summary Court etc. Courts which are
set up to administer martial law are not, properly speaking, courts at all. Such courts
sscre described b y Sir lames Stephen as "mcre committees formed for the purpose of
carry ing into execution the discretionary power assumed by the martial law
government.'
(iv) Ml tar law is a kind of defined law and is permanent in nature. But martial law is
not built on any settled or defined principles and it is temporal) in nature.
Bari, Dr. M. l:rshadul. ilie /inposif ion o/ .tlortiol Low in /longlaclesli. 1975 I Legal
Stud y. The Dhaka University Studies Part-F. Vol. 1(1). (1990). P.! (Footnote).
Constitution, Constitutional Law and Politics 441

preservation of peace, tranquility and enforcement of law and by which

the civil authority is either partially or wholly suspended or subjected 10
the military power. And as soon as peace is restored, the military
authority goes back to its barrack handing over power to the civil
government. 'ibis type of martial law is called martial law in proper
sense. About this type of martial law professor Hood Phillips says that
martial law in the strict sense means the suspension of the ordinary law
and the establishment therefore of discretionary government by the
executive exercised through military) Martial law in this sense is
unknown to the law of England. 2 The French institution of 'State of Siege'
provides the glaring example of martial law in proper sense. Under article
36 of the French Constitution the Council of Minister may declare
martial law (State of Siege) but only the parliament may authorise its
extension be y ond 121 days. This martial law in proper sense has two types
of essential elements Ante-elements and Post-elements.
Ante-Elements
(i) 'Ihere must be necessity i.e. the situation of the whole country or
any part of it is such that the ordinary courts and civil government are
unable to function.'

(ii) Declaration of martial law must come from or the deployment of

threes must he ordered by the authority who is legally competent to do
so.4

Ph i II ills. 0'! loud. C ' on,ciliuiionaf and Ai/niunsi,'aiive lan',

Seventh edition. (I ondon : Sweet and Maxwell. 987). I'l l . 357-358.
Dicer. A.V. Lair 'it i/ic' ('anslitiel ion. Ibid. P. 287
Ihe traditional rule under the doctrine of 'necessit y' is that ii the civil courts are sitting.
it is a conclusive proot that a stale of peace ai id not of war existed. But the Privy
Council ill E.ipai'/e /), Ft Ia,'ais ( 1902 AC 109). a it ease Porn South A Pica, held that
the continued sitting of the Civil courts was not proof that it of
mail jut law did not exist. It is then a question of' filCt to he determined by the ot'd i
courts o f, the land if a state or condition exists in an given area or district so as to
jiisti lv the conning into lorce ol martial law,
Who can declare martial law ?
There are di lThrences of opinion as to the answer to Ui is question. 'I'he general
democratic nile is that martial law ma y he declared hr the head of the executive under
the authorit y of Parliament. In Britain declaration of martial law was a prerogative of
the But ilf1cr 1628 declaration o I' martial law came to he the power of
parliament. Now King could declare martial law unIv oil authorisation a f
ptrliaiiiciit In France martial lass can he declared b y the Council of' Minister but to
extend it be yond 12 da y s purl i/me/it's appros at is it rnuSL In British India and also in
oilier British colonies the (iovcmor-Ceneral had the power to declare martial law and
the basis of that puss er was it made b y the British parliament. Article 196 and
442 Martial Law and Military Intervention into Politics

Post-Elements
(i) The civil government must either act in concert with or in
subordination to the military authority: or, it will be suspended and the
military authority will substitute for it.
(ii) Civil laws and courts would be suspended and the people would
be made subservient to the military authority i.e. the ordinary courts
would be superseded by the militar y tribunals.
(iii) As soon as peace is restored, martial law and martial law courts
or tribunals would be dissolved; civil law and courts would be revived;
the civil government would sit on power and the military authority would
go back to its barrack.
(iv) The civil government would pass an indemnity Act indemnifying
any person or officials in respect of their acts done in connection with the
maintenance or restoration of order in a martial law area and validating
any penalty inflicted under martial law.
(v) Once peace is restored and civil government revived, the courts
have the right to review acts committed by the military during the period
of martial law.1

Besides the above mentioned senses of martial law, there is, of

course, another type of martial law which should he a class apart, and it
is military take over or military intervention into politics under the garb
of martial law in proper sense. Though this type of martial law has
nothing to do with constitutional martial law and most of the
constitLitional experts and jurists are not at all prepared to treat it as a
martial law but the fact is that this military take over is done under the
garb of martial law; formal declaration by issuing a proclamation is made
that martial law is declared throughout the country; the largest number of
the world population is acquainted with this kind of martial law only; the
largest number of developing countries have been or still are under clasp

Article 223—A of the Pakistan Constitution iii 1962 contained provisions of martial
law. Also Article 34 01. the Indian constitution provides for martial law. But nowhere
of these constitutions it was us mentioned - who could / can declare martial law. So it
is not clear if the executive without an Act or authority of parliament can declare
martial law. In undivided Pakistan martial law was declared two times: neither there
was an Act autliori Sing it nor the dccl an hg authorit y (the President) took approval or
authorisation ironi parliament. Since the executive nuiy abuse this power of martial
law it should he specifically laid down in an Act b y parliament as to who and under
what circumstances ma y declare martial 1.m as envisaged by the Constitution.
//ggins V. W ills ( 1921 ) IR 386
Constitution, Constitutional Law and Politics 443

of this kind of martial law for a considerable period of the second half of
this century. This kind of martial law should, therefore, be given a
specification particularly for research purpose. In my view the best suited
name of this kind of martial law should be like 'So-called', 'Extra-
constitutional' or 'Whimsical martial law.' Why is it being termed as
extra-constitutional or whimsical martial law would be discussed
subsequently and this so-called martial law would be centre-point of
discussion in this chapter.
From the light of the above discussion it may he said that under
constitutional jurisprudence martial law may be of following 3 types:
1. Martial Law in Universal Sense.
2. Martial Law in Proper Sense.
3. So-Called, Whimsical or Extra-ConstitLitional Martial Law.
Martial Law in Universal Sense
As mentioned earlier martial law in universal sense exists in every
civilized country of the world. Because in this sense martial law means
the deployment of troops in aid of and under the direction of the civil
government to suppress riot, insurrection or other disorders in the realm.
In this case the military authority does not supersede the civil
government; it is merely called upon to aid the civil government in
execution of its emergency functions.

Martial Law in Proper Sense

As mentioned earlier martial law in proper sense means the
S uspension of ordinary law and the temporary government of a country or
part of it by military tribunals- This is equivalent to the circumstances
which in France is known as the declaration of 'State of Siege'. Details of
this kind of martial law have been discussed earlier.
-1
So-Called Martial Law
As mentioned earlier this type of martial law is commonly known in
political science military intervention into politics. The displacement of
civil governments by the military has been a common feature in most
countries which have gained independence from colonial rule in the
second half of the twentieth century. Wherever the social and political
condition deteriorates and an ambitious general is at hand, the country
goes through a period of military rule. This military rule suddenly comes
with the declaration of martial law and such declaration is not generally a
willful declaration of the executive who has constitutional authority to do
so: rather it is declared either by the military coup leader himself ousting
ggoverning leaders or by the head of the state under
or killing the existin
444 Martial Law and Military Intervention into Politics

gun-point. Again, many countries Constitutions do not provide any

provision for martial law but the military conies to power declaring
martial law fully in all way. From legal point of view
this type of martial law is void al? mi/jo. This type of martial law does
have the post-elements of martial law in proper sense but none of the
ante-elenients. Because firstly, with the declaration of this type of martial
law the civil governnient is suspended and the military authority takes
over to power; secondly, all civil courts and laws are declared suspended
and people comes under the jurisdiction of martial law and martial law
courts or tribunals. But none of the ante-elements is possessed by this
martial law. Because, firstly, it is not declai ed by the authority which has
constitutional and legal power to do so; secondly, it is not declared oil
basis of doctrine of necessity; rather such type of martial law is declared
for political purpose. lot seizure power ousting the civil government.
This is why it may be termed as so-called martial law. 'This kind of
revolution or imposition of martial law constitutes a class apart and has
nothing to do with constitutional martial law." I

Martial Law and the Doctrine of Necessity

In constitutional law martial law finds its jilsti fication in the common
law doctrine of necessity for its promulgation and continuance; all
measures taken in exercise of the power of' martial law must he justified
by requirements of necessity alone, the necessity to restore law and order.
Thus martial law call declared as a last resort in times of grave
emergency when society is disordered by civil war, insurrection or
invasion by a foreign enemy. for speedy restoration of peace and
tranquillity, public order and safely in which the civil authority may
function. Sir James Mackintosh conceded that "while the laws are
silenced by the noise of arms, the rulers of the Armed Forces must
punish, as equitably as they can, those crimes which threaten their own
safety and that of society but every moment beyond usurpation"2
The same opinion was expressed by lord Broughani
"Oil pressure of great emergency, such as invasion or rebellion.
when there is no time for the slow and cumbrous proceedings of the civil
law, a proclamation ma justiliabl\ issue br excluding the ordinary tribunals
and directing that otbcnec should be tried by Military Court: such proceeding

i Justice Murshed in N. Co/f C. L. /i'/iattchw-i'a V. I/ic State, Quoted. Ran. Ih/d

2 Quoted b y. Munim. F.K.MA Thid, P.52
Constitution. Constitutional Law and Politics 445

might be justi lied by necessity ... It is created by necessity and necessit y must
limit its Continuance".1
Likewise l{amudur Rahnian. J in A sma .Jilani V. Government o/
Punjab and others says
"Martinl law is a machinery for the enforcement of internal order ....is
normall y brou ght in b y a proclamation issued under the authorit y of th civil
government and it can replace the civil government only where a situation
has arisen in which it has become impossible for the civil courts and other
civil authorities to function ... it is an equall\ established principle that o here
the civil courts are sitting and civil authorities are functionin g, the
establishment of martial law cannot be justified."')
Since martial law is declared on the basis of state of necessity "mere
subjective apprehensions as to the existence of such necessity would not,
however, justify the declaration as well asthe exercise of arbitrary
powers. It will subsequently be judged with reference to an objective
standard, for 'necessity is an objective standard by which executive
action can be measured". 3 Taney C.J. of the US Supreme Court in Luther
V. Borden4 says that the court cannot restrain the executive from
declaring martial law earlier at hand, for the question whether the 'public
safety' requires a declaration of martial law is a question of political
nature. That the right to recourse to the military forces arises from
necessity has been admitted on all hands but what kind of necessity
invests the military authority with such unregulated discretion has often
been the subject of inquiry before the courts. The necessity should be that
"the danger must be present or impending and the necessity such as does
not admit of delay. "5 To determine its presence the court will take into
consideration the state of facts as they were at the time of takin g the
action. There must be a reasonable relation between the steps taken and
the emergency. 6 If such relationship does not exist, the action will be
wholly arbitrary.6
It is recognised that during the continuance of martial law the armed
forces have the power to inflict any punishment including the death
penalty. But it is also recognised that any use of force is limited as well

Quoted by. Munim. F.K.M.A. lb/a'. P. 53

2 I'LL) 1972 139
Bernard Schwartz - Quoted by. Munim. Ibid.. I'. 117
' 5 flow 1(1849)
Mitchell V. Harmony IS (wall) (U.S) 115 p. 134 (1851)
6 Bernard Schwartz. Quoted b
y Munini. lb/il
6 Starling V. Constantine 287 IS 378 )1932
446 Martial Law and Military Intervention into Politics

as justified by the nature of the emergency. Accordingly, the armed

forces whose duty is merely to restore order and repel an enemy cannot
act wantonly. The exercise of powers when martial law has been
proclaimed does not enable members of the armed forces to commit
excesses under colour and pretence of authority. Though martial law
allows every act necessary for maintenance and restoration of order, at
the same time it requires that it must be honest and honafide. On his
failure to prove executive good faith in administering martial law,
Governor Wall was not onl y prosecuted but was hanged for the crime of
committing murder)
The legislature, however, usually passes an Act of Indemnity which
provides a good defence to those responsible for acts done in good faith.
But this kind of legislation does not cover any act motivated by malice or
ill will. 'Excess and wantonness, cruelly and unscrupulous contempt of
human life, meet with no sanction from martial law any more than from
ordinary av; 2 So once martial law is withdrawn and peace restored. any
injured person may use his right of action in the court and if he can
establish that the powers were not used honafide and for recognised
purposes, lie will he entitled to damages and other remedies. If this is not
or if it is argued that every act, however unnecessary or malicious it may
be, is justified by a proclamation of martial law, one may easily see the
institution of martial law degenerate into an engine of tyranny, private
malice and revenge.
So-Called Martial Law, Courts, Doctrine of
Efficacy and Doctrine of Necessity
Now we shall proceed to see how the courts treat the so-called
martial law in developing countries where military take over has been a
common feature since the second half of the 20th century. In this respect
courts in developing countries have resorted to two different doctrines
Doctrine of Efficacy and the Doctrine of State Necessity.
Doctrine of Efficacy
This doctrine is also called the doctrine of revolutionary legality
which is based on the positivist theory of the efficacy of the change or
revolution (coup d' ctat) expounded by Hans Kelsen. In his book
"General Theory of Law and State" Kelsen, under the heading of "the

Munirn. F.K.M.A. Ibid, P.118

2 Per Colonial Judge in a case arising after Jamaica Insurrection in 1865. Quoted by.
Munini. Thid. P.118
Constitution, Constitutional Law and Politics 447

Principles of Legitimacy', has given a logical explanation on the

elements and effects of a revolution. According to Kelsen, a revolution
means a successful revolution and a successful revolution must have the
following two elements
(i) The overthrow of existing order and its replacement by a new
order.
(ii) The new order begins to be efficacious because the individuals
whose behaviour the new order regulates actually behave, by and large in
conformity with the new order.
If these two facts are associated with the new order, then the order is
considered as valid order and a law creating factor. So the success of a
revolution or. in other words, the efficacy of the change would establish
its legality.'
This Kelsens theory of efficacy was first applied in Stale V. Dosso2
case by the Pakistan Supreme Court. Pakistan after nine years of its
independence, had been able to adopt and implement its first republican
constitution in 1956. Then the Governor-General Iskander Mirza was
elected as the first President under the constitution. After the constitution
was adopted, there was naturally a sense of relief in the political circle
who expected full implementation of the constitution after the first
general election to be held in 1959. But such expectations proved unreal
as governments after governments came and went resulting in an extreme
political chaos and instability both at the centre and in the provinces.
President Iskander Mirza did not play the democratic role of an impartial
balance under the constitution; rather being directly involved in party
politics, he became the master-architect of these chaos and instability.
For his power-expectation and undemocratic and conspiratorial activities
it was decided by the politicians that Iskander Mirza would not be elected
as the president in the next election. When the country was preparing for
the general election to be held in February, 1959, Mirza finding himself
unable to rally slLpport among the politicians for his re-election, by a
proclamation on the night of 7th October, 1958 abrogated the constitution
of 1956, dismissed the Central and Provincial governments; dissolved the
central and provincial legislatures and declared martial law throughout
the country. In doing this Mirza was supported by the Commander-in-
Chief of the Pakistan Army, general Mohammad Ayub Khan who was

l Kelsen, Hans. General Theory of Law and State. (New York • Russell and Russell,
1961). P1'. 117-119. emphasis supplied by the author.
2 P1.1) 1958 (SC) 533
448 Martial Law and Military Intervention into Politics

also appointed as the Chief Martial Law Administrator. Following the

proclamation of martial law the Law (Continuance in Force) Order was
promulgated.
The legality of Mirza's Proclamation of martial law and the military
government came up for consideration in State V. Dosso case. As
mentioned by a commentator.
"the Pakistan Judiciary had to face unique situation when it was required
to pronounce oil legality of new regime which usurped power through
an unprecedented means hitherto unknown in the constitutional history of the
commonwealth. The martial law imposed by Mirza was not martial law' as
understood by the ordinar y connotation of the term. The pre-existing legal
order had been overthrown establishing a new one by an extra-ordinary
means not contemplated by the constitution and the question of legitimacy of
the new order had come for examination before a court established under the
system which had now been replaced.t
The court took resort to the positivist theory of Hans Kelsen and
declared the martial law and military Governtment of Pakistan valid on
the basis of the doctrine of efficacy as explained by Kelsen. The
substance of the judgment was that since the constitution was abrogated
and its government came to power by imposing martial law and since
there was no protest among the people, the coup was a successful one and
martial law and military government were legally valid. Munir C.J.
maintained:
"Victorious revolution or successful coup d' etal was an internationally
recognised legal method of changing a constitution, and the revolution
having become successful in Pakistan it satisfied the efficacy of the change
and became a basic la-creating fact ..,. It sometimes happens that a
constitution and the national legal order under it is disrupted by an abrupt
political change not within the contemplation of the constitution. Any such
change is called a revolution, and its legal effect is not only the destruction of
the existing constitution but also the aliditv of' the national legal order
from a juristic point of view the method by which and the persons by whom a
revolution is brought about is wholly immaterial ... Equally irrelevant is the
motive for a revolution ...Hf the revolution is victorious in the sense that
persons assuming power under the change can successfully require
inhabitants of' the countr y to conlbrm to the new regime. the revolution itself
becomes a law-creating fact ......

Patwari. A. It. M. Maniu I I slain. /'rü/ec,jon of the ('oilsIitiufufl (10(/ Euiniwnentu/

k/g/l/s U/Oh')' 1/it' .lIa,ija/ /(11j. /1/ J'ukisiw,. P.."
Constitution, Constitutional Law and Politics 449

The judgment delivered in Dosso's case had to face a severe

criticisms on the one had and on the other hand, it had a great impact, for
it gave recognition to an unconstitutional government which became a
pattern of 'change' in the commonwealth countries and later on, this
decision has been refereed to with approval in courts of many countries
like Nigeria, Rhodesia, Ghana, Uganda etc.
In Uganda V . Commissioner of Prisoners Exparte Matuvo the
Ugandan High Court following the decision of Dosso's case held that the
constitution of 1966 of Uganda which was made by military government
was a product of a revolution and it would be regarded as valid and the
supreme law of Uganda. Similar verdict was given in R V . Ndholvu by
the Rhodesian High Court and also in A woornor W illiams V . Gbedmah
by the Supreme Court of Ghana.

The Overruling of the Doctrine of Efficacy

In A sma Jilani V The Government of Punjab 1 the same Supreme
Court of Pakistan overruled the decision of Dosso's case and held that the
martial law proclaimed by Yahya Khan was illegal and that his
assumption of power on 25th March, 1969 was wholly unconstitutional
and could not be recognised as valid. As to the doctrine of efficacy the
court said
"The principle laid down in Dosso's case is wholly unsustainable and
cannot be treated as good law either on the principle of stare decisis or even
otherwise." -
Likewise in the case of EX Sallah V . A ttorney General the Supreme
Court of Ghana, after the constitution of 1969 came into effect, was
called upon to determine the legal implications of the military coup d'
etat on the pre-existing legal system. The court held that the suspension
of the constitution of 1960 by military coup had no effect of destroying
the legal order.
Doctrine of Necessity
This doctrine has already been discussed. Now we will see how the
court has accepted the doctrine to meet revolutionary situations. The
present Pakistan constitution was adopted in 1973 when Zulfiker Au
Bhutto was the Chief Martial Law Administrator and president. But in
1973 General Ziaul Haque, the Chief of Army led a military coup; ousted

PLD 1972 Sc 139

29
450 Martial Law and Military Intervention into Politics

Bhutto and his government; dissolved parliament; suspended the

constitution and declared martial law. The legality of this martial law
came up for consideration in Beguni Nusrat Bhutio V The Chief o 'A nz
Staff and Federation of Pakistan. The Supreme Court declared martial
law and military coup by Ziaul Haque valid; it overruled the decision of
A snia Ji/ani. But this time the court did not rely on the doctrine of
efficacy; rather it resorted to the doctrine of state necessity. The court
said:
It was in this circumstances that the Armed Forces of Pakistan
;irvened to save the country form further chaos and bloodshed to disaster.
It was undoubtedly an extra-constitutional step, but obviousl y dictated by the
highest consideration of state necessity and welfare of the people.
The imposition of martial law was impelled by high considerations of
state necessity and welfare of the people, the extra-constitutional step taken
by the Chief of Army staff to overthrow the government of Mr. Bhutto, as
well as the provincial government and to dissolve the Federal and Provincial
legislature stand validated in accordance with the doctrine of necessity."

The So-called Martial Law and the Role of the Judges

It has already been mentioned that declaration of martial law can be
justified only on the common law doctrine of necessity. But when martial
law is declared just to hold on to power or to capture power through
military coup or to oust the existing government for any other purpose,
this martial law does not have any legal validity. But due to pressure of
realities and facts or under a threat the judges have tried to legalise this
so-called martial law sometimes on the basis of the doctrine of efficacy
and sometimes, on necessity. Again, when there has been no threat or any
pressure,the court has emphatically declared this martial law illegal. For
example, when the Pakistan Supreme Court delivered its judgment on
A sma Jilani's case Yahya and his regime had been dicredited and
removed from office and martial law was not in force. Likewise, the
decision of EX Salla/fs case also came after the military government
had ceased to exist. If such judgments are pronounced during the
continuance of military rule and martial law, there is danger for the
judges and the courts so pronouncing; they will either be suspended or
their jurisdiction will be restricted or the judges concerned will be
removed from office by the new regime. Again, it is improbable that the
judgment of the court would have made the slightest difference to the
continuance of martial law, because the military authority does not
Constitution, Constitutional Law and Politics 4-51

hesitate to fraustrate such judgments by issuing decrees or proclamation.

For example, when the Lahore High Court of Pakistan in Ma//k Mir
ilassan V. Stale declared the proclamation of martial law declared 25th
March ,1969 illegal, the military authority issued the Presidents
Jurisdiction of Courts (Removal of Doubts) Order. 1969 by which the
courts were barred from questioning the exercise of powers by the
Martial Law Authority and the decision in contravention of this would be
deemed to be of no effect. Likewise when the Supreme Court of Nigeria
in Lakanini V A ,'forncy General declared the military coup and martial
law illegal, the decision of the court was made eneufective by the military
government by issuing the Fral Military Government (Supremacy , and
Enforcement of Powers) Decree, 1970. The situation has best bee n
explained by Justice Fieldsend in Mad:imbamulo V . Lcira'nerflurke N.O.
and another
It may be a vain hope that the] udgrncnt of court will deter a usurper, or
have the effect of resorting legality, but for a court to he deterred by fear of
failure is merely to acquiesce in illegality.
Thus the legality of so-called martial law which is followed by a
military coup or revolution does not depend on the courts justification or
judgment; rather it conversely controls the courts and judges. This is why
this type of martial law may he termed as whimsical martial law.
Certainly this type of martial law poses a dilemma for the judges.
Sometimes they become helpless when the constitution is either
abrogated or suspended and made subservient to the will of an extra-
constitutional force. Though a judge is oath-bound to preserve, protect
and defend the constitution, during this extra-constitutional situation 'he
is' as expressed by Sir Hugh Beadle, 'simply forced into a position of
accepting the facts and the laws as they are, whether he likes or not. He
has been taken over by events." 2 An Argentinan Judge (Oyhanarte. J.)
has aptly described the dilemma of judges
The Supreme Court cannot modify the course of history. It lacks the
power necessar' to do this. When it is faced with the overthrow of
constitutional authorities and the installation of a government of force.by
what have come to be called revolutionary' means, the judges of the court
can do three things:
(i) resigns, thus transferring the responsibility of the decision to others;

1 (1968)2 SALR 284 Quoted by. Ershadul Ban, Ibid, P.68

2 Sir hugh Breadle C.J. in R V. Ndhloe. Quoted by, Kamal. Mustafa. J. Bangladesh
Constitution Trends and issues. Ibid. P. 60.
452 Martial Law and Military Intervention into Politics

(ii) simply accepts the fact:

(iii) try to save those institutional values which can still he saved.1

But the judges should make choice for the third alternatives because,
as mentioned by Mastafa Kamal. J. 'resignation of judges in revolutionary
situations has not been uncommon, but except for the ripple that it causes
in the body politic neither the judges by resignation en masse or in ones
or twos have been able to deflect the revolutionar y regime from
following the course of action it chose to persue nor have the people at
large carried the mantle from the judges to overthrow the extra-
constitutional force. On the other hand when judges resigned in protest
against an unconstitutional take-over or when judges were removed
because of their obstruction to the wishes of the new authority, their
successors on the Bench merely conformed to the wishes of the new
regime and often they were also of so low a calibre that justice was no
longer administered properly.2
So-Called Martial Law in Bangladesh
The Constitution of Bangladesh does not envisage the imposition of
martial law. Throughout the text of the Constitution, no reference has
been made to Matial Law. Although the term 'Martial Law' had duly
occurred in Article 196 of the 1956 Constitution of Pakistan and Article
223-A of the 1962 Constitution of Pakistan, the Articles which enacted
provisions for passing an Act of Indemnity in relation to acts done in
connection with Martial Law Administration, it has significantly been
omitted form corresponding Article 46 3 of the Constitution of
Bangladesh that empowered parliament to pass an Act of Indemnity in
respect of any act done in connection with the national liberation struggle
or the maintenance or restoration of order in any area in Bangladesh. This
shows that although in Pakistan Articles 196 and 223—A of the 1956 and
1962 Constitutions respectively, recognised the possibility that Martial

Quoted by. Kamal, Mustafa, i, lbid, P. 60

Kamal, Mustafa, J, Ibid, P. 61
Article 46 of the Constitution of Bangladesh says— 'Notwithstanding anything
contained in the forgoing provisions of this part (i.e. Part Ill which guarantees some
important fundamental rights to citizens) Parliament may law make provisions for
indemnit'ing any person in the service of the Republic or any other person in respect
of any act done by him in connection with the national liberation in Bangladesh or
validate any sentence passed, punishment inflicted, forfeiture ordered, or other act
done in any such area."
Constitution, Constitutional Law and Politics 453

law might be imposed under the common law doctrine of necessity for
the purpose of 'the maintenance or restoration of order in any area in
Pakistan, no such recognition was given in Bangladesh where the phrase
'Martial Law' was omitted from the analogus Article 46 of the
Constitution of Bangladesh. Therefore, it appears that in the Constitution
of Bangladesh there is no provision whatsoever for the imposition of
martial law under any circumstances even for the sake of restoring law
and order.'
But like some other commonwealth countries martial law was
imposed unconstitutionally in Bangladesh twice— first, on the 15th
August, 1975 and second, on the 24th March, 1982.
On 15th August, 1975 Sheikh Mujibur Rahman, the then President of
Bangladesh was brutally killed with his family members by a military
coup. Following this assassination martial law was declared throughout
the country. Khandaker Mostaque Ahmed assumed the office of the
President. Though martial law was imposed, the Constitution was not
suspended; it was to remain in force subject to martial law proclamation.
regulations, orders etc. This martial law continued for 3 years and 7
months. On the 5th April, 1979 the Chief Martial Law Administrator and
President Ziaur Rahman got his extra-constitutional regime legalised
through the parliament which was elected during the continuance of
n:rttal law and on 6th April martial law was withdrawn.

For the second time martial law was imposed by the then Chief of
Army Lieutenant General Hussain Muhammad Ershad ousting the civil
government of Justice Abdus Sattar on 24th March, 1982. This time the
Constitution was suspended. This martial was kept in force for 4 years
and 7 months. On 10th November, 1986 General Ershad legalised his
regime through a parliament which was elected during the continuance of
martial law and on the next day martial law was withdrawn.

It is pertinent to note here that unlike the case of Dosso and A sina
Jilani (the cases in which legality of imposition of martial law in
Pakistan was examined) in Bangladesh the legality of the declaration of
martial law was not discussed by the Supreme Court in any case either
during the continuance of or even after the withdrawal of martial law.
But some fringe questions relating to martial law came up for

Ban. Dr. M. Ershadul. ibid. P. 67

454 Martial Law and Military Intervention into Politics

consideration before the courts 1 and the courts declared that martial law
proclamation regulation etc. were supreme law and the Constitution lost
its character as the supreme law. In this respect, the observations of Fazle
Munim. J. in the case of Halitna Kliaiun V . Bangladesh is worth
quoting:
"What it appears ftom the Proclamation of August 20, 1975 is that, with
the declaration of Martial Law ....the constitution of Bangladesh ... (has been
made) subordinate to the Proclamation and any regulation or order as may be
made by the president in persuancc thereof....Under the Proclamation ... the
constitution has lost its character as the supreme law of the country. There is
no doubt, an express declaration in Article 7(2) of the constitution to the
following effect," 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 to the extent of such
inconsistency be void." Ironically enough, this Article, though it still exists
must he taken to have lost some of its importance and efficacy. In view of....
the Proclamation the supremac y of the constitution .... is no lager
unqualified."

For the third time in Bangladesh military intervention into politics

1th
was made on I January, 2006 in the wake of poiitical unrest before the
9th Parliamentary election. This intervention did not follow any
declaration of martial law; nor was the constitution suspended; it was
class part intervention and the consequence and aftermath of this
intervention is yet to ripen into politics. For details, see chapter 23 and
243 of this Book.

Ilalima Khatun V. Bangladesh 30 DLR (SC) 207

Sultan Ahmed V. Chief Election Commissioner 30 Dl,R (HC'D) 291.
Iiaii Jaynal Ahedin V. State 30 DLR (1-lCD) 371
Jamil 14aquc V. Bangladesh 34 DLR (AD) 125
Nasiruddin V. Bangladesh 32 DLR (Al)) 216
Khandakar Mostaque Ahmed V. Bangladesh 34 DLR (Al)) 222
Khandker Ehtesamuddin Ahmed V. Bangladesh, 30 DI.R (AD) 154
Bangladesh V. Mahbubur Rashid 1981 BLD (AD) 300
Monoranjan Mukherjee V. Election Commission 41 DLR (HCK) 484
Principal Secretary, Presidents Secretariat V. K. Mahtabuddin Ahmed 42 DLR (AD)
214
Nasir Kader Siddiqui V. Bangladesh 44 DLR (AD) 16
For more of academic treatment, See. Kamal, Mustafa, J. Ibid.
Constitution. Constitutional Law and Politics 455

CHAPTER XXIH

CARETAKER GOVERNMENT AND THE 13TH

AMENDMENT OF THE CONSTITUTION

Caretaker Government
The concept of 'Caretaker Government' as it has been and is being
used in politics and constitutions of various countries, may be used in
three senses Presumed Caretaker Government ; Caretaker Government
in Special sense; and Caretaker Government in proper sense or Non-Party
Caretaker Government.

Presumed Caretaker Government

When parliament stands dissolved because its duration has expired or
is dissolved because the government has been defeated in the floor and it
has advised for its dissolution or because of any other reason, the existing
government continues in office till the new government is formed after
election. This sitting government after dissolution of parliament and
before its reconstitution transforms automatically into a caretaker
government in the sense that this government though a sitting one
undertakes to take care of the affairs of the government for pre-election
interim period during which it does not initiate any important policies or
commitments of a broad and sweeping nature. Invariably, the Prime
Minister in office at the time of the dissolution of the legislature or the
termination of its constitutional life, carries on the administration of the
country as head of the caretaker government. This transformation is
recognised in all democratic countries. In Britain, Canada, New Zealand
it is a conventional practice and in countries with written constitutions it
is specifically mentioned that when parliament is dissolved the sitting
government continues in office till its successor has entered upon office.
To be noted that this transformed nature of the sitting government
during the election period is not universally recognised as caretaker
government as such and it cannot be said to be 'caretaker government' in
true sense of the term, for this government taking care of the
administration itself contests in the election while it is in power. But as it
does not initiate any important policies or make a commitment of broad
and sweeping nature and it holds office just to take care of the day to day
administration, only in this sense it may be presumed to be a kind of
456 Caretaker Government and 13 " Amendment

caretaker government. This type of caretaker government is automatic

and natural in countries where constitutionalism is practised.
Caretaker Government in Special Sense
In some cases to a particular special situation a caretaker government
is formed on the basis of national consensus. Again, in some written
constitutions specific provisions are kept for caretaker government to
conduct general election.
For example, in Britain in 1945 the cabinet formed by Churchill
following the Second World War has been termed by Sir Ivor Jennings as
Caretaker Government. As this government was formed particularly for
conducting post-war election in Britain and this 16 member cabinet was
participated by Conservative Party, National Liberation Party and also
some non-party members. This government was different from a
presumed caretaker government as I have mentioned above. Sir Ivor
Jennings categorically says that it should be explained that it is not
British practice to appoint a 'caretaker government' for the duration of
general election. It was done in 1945 because the wartime coalition had
broken up. The electors had to decide whether they wanted a
Conservative Government or a Labour Government, and meanwhile the
King's service had to be carried on. This was quite exceptional. The
government which advises the dissolution remains in office throughout
the election and continues to do so after the election, unless it is
defeated'2
Again, Article 48(5) of the Pakistan Constitution specifically
provides for 'caretaker government'. It stipulates that—
"Where the President dissolves the National Assembly, he shall, in his
discretion
(a) appoint a date not later than 90 days from the date of the dissolution.
for holding of a general election to the Assembly; and
(h) appoint a Caretaker Government".
But there is no provision for appointing a non-party caretaker
government; neither is there any mandatory provision that the caretaker
government will not take part in the election. As a result, the provision

Cabinet Government. 3rd ed, P. 86 (Footnote)

2 Cabinet government. Ibid. P. 86
Constitution, Constitutional Law and Politics 457

for caretaker government as provided in the Pakistan Constitution cannot

be said to be a caretaker government in true sense of the term)

Caretaker Government in True Sense

In true sense the term 'caretaker government' means an interim
government which is a non-party government and abstains itself from
contesting the election and is appointed particularly for conducting a free
and fair election. For example, the provision for 'caretaker government' as
provided by the I 3th Amendment of the Constitution of Bangladesh
ensures a caretaker government in true sense, for none of the government
has the right to contest general election. Caretaker government of
Pakistan of 1993 and of 1997 were caretaker governments in proper
sense. The interim government to conduct election in South Africa in
1994 was also a caretaker government in true sense. The interim
government of Justice Sahabuddin Ahmed which was formed after the
fall of military dictator Ershad regime in 1990 in Bangladesh was not,
from constitutional point of view, any caretaker government because
there was no provision for caretaker government as such in the
Constitution of Bangladesh. Under the provisions of the Constitution
Justice Sahabuddin Ahmed was appointed as the Vice-President and
when Ershad resigned Sahabuddin Ahmed acted as the Acting President
and until lie came out of his office he acted as the Acting President. But
if we examine his government from factual, political and philosophical
point view, we find that his government was essentially though not
constitutionally a caretaker government in true sense. Because all of his
government were non-political persons and none of them took part in the
election.2

After the death of President Ziaul l-{aque Pakistan had its first caretaker government
under the constitutional provisions to conduct election. But all ministers under
caretaker government took part in election and there was strong allegation of rigging
and malpractices in the election. The second caretaker government was in 1990 and
this time it was also party government and all the ministers of caretaker government
took part in the election and there was extensive allegation of rigging and
maplractices. The third caretaker government was in 1993. This time it was a non-
party caretaker government and none of the members of it took part in election. The
last caretaker government was in 1997. This time also it was impartial and non-party
caretaker government and none of the members of it took part in the election.
The aforesaid 3 types of caretaker governments may again be classified into two
categories (I) So-called or Party-caretaker government; and (2) Non-party caretaker
government.
458 Caretaker Government and 13 "' Amendment

Background of the 13th Amendment

On the way to restoration of liberal democracy from the bondage of
military autocracy the historic 5th Parliamentary Election was a
milestone which was held under the Acting President Justice Sahabuddin
Ahmed in 1991. An unprecedented degree of enthusiasm was shown by
all quarters. The election was nationally and internationally recognised as
free and fair. Winning majority seats in parliament the BNP formed
government. But from the beginning of the BNP government the
opposition parties in the parliament began to create pressure on the
government so that it include provision for caretaker government in the
Constitution. In 1993 first Jamat-i-lslam and the AL and JP submitted
their respective Bills concerning caretaker government. Every Bill
contained the same object—"to make general elections free and fair and
to make the whole process of election free from the government influence
provision for caretaker government should be introduced in the
Constitution". But this demand of the opposition parties was treated by
the government as unconstitutional and illegal.-The Magura by-election
was the turning point for the movement of caretaker government. It was
this Magura by-election in which the government party BNP took resort
to an unprecedented malpractice and rigging. This election manipulation
of BNP government, as reported by most important dailies, defeated even
the Ershad's election manipulation in 1988 and it has earned a title of
Election Magura' in the election politics of Bangladesh. Before this
Magura incident all the opposition parties made walkout from parliament
in protest of a statement made by Information Minister Nazmul Huda
concerning Hebron Killing issue of Israel. And they made commitment
that they would not return to parliament if the Information Minister did
not expunge his statement. To this boycotting of parliament Magura
election malpractices provided an extra strength and now the opposition
parties got their direct way of demanding that they would not go back to
parliament till a caretaker government' Bill was introduced ill the House.
The government did not pay a heed to this demand. On 28th December,
1994 about 147 MPs resigned in protest. When the government
proceeded to hold by-election in 142 vacant seats the political impass
took more outrageous condition leading to continuous country-wide
strike. On 24th November, 1995 the government dissolved the 5th
parliament and the 6th Parliamentary Election was scheduled on 15th
February, 1996. But since the government did not pay any heed to the
demand of caretaker government by the opposition. all the opposition
parties boycotted election. The ruling party BNP proceeded to contest the
Constitution. Constitutional Law and Politics 459

election with sudden hand-picked parties as the military director Ershad

did. The announcement of the result of the election added fuel to the fire-
like opposition movement. All the opposition parties launched their
country-wide non-cooperation movement and demanded the fall of the
government as well as the dissolution of 6th parliament. The whole
politico-economic condition of the country was leading to a complete
civil war. Lastly finding no other the way out BNP government
introduced the Caretaker Government Bill (the 13th Amendment of the
Constitution) on 21St March at the first session of the 6th parliament. The
Bill was passed on 26th March. Then the 6th parliament after 7 days of
its life was dissolved on 30th March and Justice Habibur Rahman was
appointed as the Chief Adviser of the Caretaker Government as
envisaged in the 13th Amendment of the Constitution.
The 13th Amendment of the Constitution
This Amendment was passed with 268-0 votes on 26th March. 1996
and it became law on 28th March. The Amendment added a new Chapter
(Chapter IlA : Non-Party Caretaker Government) in part IV of the
Constitution with 5 new Articles (58A, 58B. 58C, 58D and 58E). It also
amendment Articles 61, 99, 123, 147. 152 and the Third Schedule of the
Constitution.

The Non-Party Caretaker Government

Formation of Caretaker Government when arise?
According to provisions of the 13th Amendment the question of
formation of caretaker government will arise in the following two
situations:
(I) If parliament is dissolved for any reason a caretaker government
shall he appointed within 15 days after such dissolution.
(ii) If parliament stands dissolved, a caretaker government shall be
appointed within 15 days after such dissolution. [(Article 58C(2)]

Composition of Caretaker Government

According to Article 58C the caretaker government shall consist of
not more than 11 members of whom one shall be a Chief Adviser and
other 10 shall be Advisers.
460 Caretaker Government and 13 Amendment

Qualification of the Advisers

Under Article 58C(7) the President shall appoint Advisers from
among the persons who are -
(a) qualified for election as members of parliament;
(b) not members of any political party or any organisation associated
with or affiliated to any political party.
(c) not, and have agreed in writing not to be, candidates for ensuring
election of members of parliament;
(d) not over seventy-two years of age.
Who can be appointed as the Chief Adviser
Following persons having qualification of an Adviser may be
appointed as Chief Adviser by the President:
(i) The person who among the retired Chief Justices of Bangladesh
retired last.
(ii) 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.
(iii) If no retired Chief Justice is available or 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 last.
(iv) If such retired judge is not available or is not willing to hold the
office of Chief Adviser the person who among the retired judges
of the Appellate Division retired next before the last such retired
judge.
(v) 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.
(vi) If none of the above-mentioned persons can be found to be
appointed as the Chief Adviser, the President shall assume the
function of the Chief Adviser (Article 58C).

Status of the Members of the Caretaker Government

The Chief Adviser shall have the status, and shall be entitled to the
remuneration and privileges, of a Prime Minister and an Adviser shall
Constitution, Constitutional Law and Politics 461

have the status, and shall be entitled to the remuneration and privileges of
a Minister.

Functions:
(I) The non-party caretaker government shall discharge its function as
an interim government and shall carry on the routine function of such
government with the aid and assistance of persons in the services of the
Republic; and, except in the case of necessity for the discharge of such
functions it shall not make any policy decisions.
(ii) The non-party caretaker government shall give to the Election
Commission all possible aid and assistance that may be required for
holding the general election of members of parliament peacefully, fairly
and impartially (Article 58D).

Evaluation of the 13th Amendment

In the constitutional development of Bangladesh the 13th
Amendment of the constitution may be said to be a positive step for some
reasons.
Firstly, the fundamental basis of formation of government in
democracy is election. If this election is not free and fair, the formation
of government cannot be said to fulfill the norms of democracy; and in
this case the most celebrated maxim of democracy 'all power belongs to
the people'. becomes a mere farce. More the election process will be free
and fair, more the people will see their voting right, in other words, right
to elect representatives meaningful. The most important positive merit of
the 13th Amendment is that it has paved the way for making the general
elections free and fair, particularly free from government influence.
Secondly, it has been a common trend in the politics of almost all
developing countries that during the election period the party in power
makes the worst abuse of public purse and properties to get the victory in
their favour. This manipulation in the election process virtually creates
an insurmountable stumbling block to the development of some
important democratic institutions like the Election Commission, voting
right, press, media and political party etc. Since the I 3th Amendment
provides interim separate caretaker government and no party government
can continue in power during the general election, there remains no scope
of manipulation of public purse and properties by the party in power.
1
462 Caretaker Government and 13' Amendment

Thirdly, coming to power every government from now oil have

to think that once parliairent is dissolved or its term is ended, it will
automatically find itself out of the power and then the public will have
the fullest opportunity and atmosphere to exercise their ri ght to elect
representatives and of the government. On the other hand, no government
will be in a position to think for manipulating in the election process.
There is therefore, possibility that the government will now be more
responsive than in the past.

Demerits of the 13th Amendment

Firstl y , though the Chief Adviser of the caretaker government has
been given the status of a Prime Minister, from legal point of view, he
has been made subservient to the President and he has not been given the
full power as a Prime Minister in ordinary situation can exercise.
According to article 58E the President is not bound to act in accordance
with the advice of the Chief Adviser. Again, article 5813(2) stipulates that
the non-party caretaker government shall be collectively responsible to
the President. Thus President retains the power to cancel any decision of
the caretaker government and even the caretaker government itself. Since
the Chief Adviser along with all advisers of the caretaker government is
non-political and non-partisan person and since he will exercise his
powers only for three months to conduct a general election, no power-
expectation will work within him, he should have been, for the sake of
independent exercise of his function, given the same constitutional power
as the Prime Minister does have.
Secondly, while the caretaker government is in power the unfettered
power over the defence has been vested upon the President. During
ordinary situations though the supreme command of the defence is vested
in the President, he exercises this function only in accordance with the
advice of the Prime Minister. But the 13th Amendment is silent about
this matter. Thus the most powerful way to act in an arbitrary manner is
retained with the President.
Thirdly, this interim caretaker government will be in power for 3
months only; they will not have any policy formulating functions and
they will be in power without any prior experience of governing the
country. So it is likely that this government may create obstacle in the
smooth functioning and developments of policies initiated by the
Previous government.
Constitution, Constitutional Law and Politics 463

This is, of course, the most strong argument against the concept of
separate caretaker g overnment. It is also true that very few instances can
be found where after every 5 years or after every dissolution of
parliament a separate politically inexpert government sits in power for
conducting a general election. But the fact of the Bangladesh politics as
far as it concerns its election politics is that a free and fair election has
been a far cry in the history of Bangladesh since its independence and the
interim government of Justice Sahabuddin Ahmed after the fall of Ershad
regime has made a historic success in holding a free and fair election and
this success had turned the concept of caretaker government into a
political reality which has, through the 13th Amendment, been a
constitutional reality.
But analysing the Amendment from true viewpoint of
constitutional ism we would say that 13th Amendment is against the
principle of institutionalisation of democracy. Because as a result of this
Amendment a wrong conception will always work in the minds of the
people and young learners that the government in power cannot be above
the corruption and manipulation of election process; secondly, the
Election Commission as a constitutional institution of democracy for
controlling, conducting and superintending the whole election process is
inherently weak and cannot be made in a position to be institutionalised;
thirdly, the whole governing process particularly the bureaucracy will get
a swing on a regular interval which may hamper the smooth functioning
of the administration. For institutionalisation of democracy not a separate
interim caretaker government but an independent Election Commission is
essential which I shall discuss later on in this chapter.

Why Caretaker Government where there is

Election Commission?
The Election Commission which is the fourth organ of the state as
invisaged in the Constitution is a constitutionally independent body to
control and conduct election process. Administering election process
through an independent Election Commission is recognised in many
democratic countries. As to the independence of the Election
Commission the following provisions have been provided for in the
Constitution:
(I) The Election Commission shall be independent in the exercise of
its functions and subject only to this Constitution and any other law
[Article 118(4)].
464 Caretaker Government and 13111 Amendment

(ii) 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 [Article 118(5)].
(iii) The President shall, when so requested by the Election
Commission, make available to it such staff as may be necessary for the
discharge of its functions (Article 120).
(iv) The superintendence, direction and control of the preparation of
the electoral rolls for elections to the office of President and to
parliament and the conduct of such elections shall vest in the Election
Commission (Article 119).
(v) It shall be the duty of all executive authorities to assist the
Election Commission in the discharge of its functions (Article 126).
Thus the Constitutional independence of the Election Commission
has been ensured but the problem lies with the statutory independence;
various laws, which regulate the Election Commission and electoral
process are vitiating this constitutional independence.
Firstly, according to the Rules of Business the Election Commission
Secretariat is attached to the Prime Minister's Secretariat. As a result, the
Chief Election Commission cannot exercise his effective control over the
Secretariat of the Election Commission.
Secondly, it is a conventional and somewhere Constitutional rule that
members of the Election Commission are appointed in consultation with
the Chief Election Commissioner. But that condition of appointment has
neither been inserted in the Constitution nor does it exist in convention in
Bangladesh politics.
Thirdly, though the security of tenure of the Commissioners of the
Commission is as like as that of the judges of the Supreme Court and
although. article 119 of the Constitution has invested the Election
Commission all control and superintendence over election process, the
Commission has little statutory independence to control election process
independently and effectively. As expressed by an ex-Chief Election
Commissioner the scheme under the Representation of the People Order,
1972 is that the Election Commission shall simply arrange the election;
and the real control will remain at the hand of the Returning Officers.
Under section 39 of the Representation of the People Order, 1972 the
principal function of pronouncing election results of parliamentary

See Summary of Proceedings of orkshop on Electoral Process in Bangladesh,

published by CAC in 1994.
Constitution, Constitutional Law and Politics 465

election is done by the Returning Officers who are the DepLity

Commissioners of different districts. These Returning Officers are easily
dictated by the government and if he declares a candidate who has not
secLired the highest votes elected, the Election Commission has no
independent and absolute power to punish him.
FOLlrth!y, in every district there is an Election Officer known as
District Election Officer (DEO) who is under the direct control of the
Election Commission. But b y law this DEO has been made subordinate to
executive officers. Most of the logistics required to he used in the polls
general elections or elections of the local bodies -are controlled by the
Deputy Commissioners (DC). Besides, the DCs enjoy the power of
magistracy which is ever' important for conducting polls. Oil other
hand, the status of the District Election Officer is lower than that of
Thana Nirbahj Officer (TNQ) and the former controls no logistics in the
district.
Fifth!y, to get redress of violation of election laws and irregularities
there is provision for Election Tribunal as envisaged in the
Representation of the People Order, 1972. In this tribunal a candidate
through all petition call an election in question. But the
procrastination of the proceedings of the tribunal vitiates all its pious
pLirposes. In most cases petitions are not decided till the parliament is
dissolved or ends its term thus frustrating all the ri g hts of the petitioner.
In this connection it is important to mention that- ill 24th November,
1995, 194 election petitions were filed oLit of which only 26 petitions
were decided and that too very lately. The following table will make the
position clear:
Parliament No. 01 F I ect ion Pctj[jons
1)ecidcd
First
March S. 1973 to August 15. 1975 4 NUt
Second
bruary 18. 1979 to March 24. 1982 40
Mav 7. 1986 to 1)eccniher 6. 1987 106 3
Fourth
'IiiItt ')Xi to December 6. 1990 13
11:1
ru.arv27. 1991 to Nin I 995
StIt •LI III,tOIc una au
19 March. 1996 to 25 March. 1996 i

30
466 Caretaker Government and 13" ' Amendment

Seventh
14 Jul y . 1996 to 13 July. 2001
unavailable unavailable 1
Fighth 31 13
28 October. 2001-

Sixthly, the workload of the Election Commission has been another

threat to its discharging functions effectively. Though under the
Constitution the primary function of the Election Commission is to
contr& the parliamentary elections and to arrange for electoral rolls and
demarcation of constituencies etc. a gigantic burden of holding local
bodies election has been put on the shoulder of Election Commission.
The Commission is engaged with abnormal load of 50 thousands elective
offices of the local bodies. No Election Commission in South Asian
countries like India and Sri Lanka has been vested with this Sort of
burden for running local bodies elections.

These are the legal and institutional short comings which have made
the whole institution of Election Commission weak in administering and
controlling the electoral process. And these shortcomings have lastly
paved the way for the caretaker government.
The Caretaker Government and the Independence of
the Election Commission.
The caretaker government as provided for by the 13th Amendment
has paved the way of making only general elections free and fair. But the
question of ensuring free and fair atmosphere for other elections like
parliamentary by-election, city corporation election, local bodies election
etc are still unsettled.
Secondly, though provisions for caretaker government has been
introduced with a view to ensuring free and fair general election, still
there are sonic drawbacks which will hamper free and fair election. The
unchecked power given to the Returning Officers under the
Representation of the People Order, 1972 will still be abused by them
sometimes for their personal interest and sometimes for their allegiance
to any political party. Question was raised even during the first caretaker
government as to the impartiality of the Returning Officers. Returning
Officers have been given wide and unchecked powers in selecting and
accepting nomination papers, countin g votes, controlling polling stations
and announcing results and in case of irregularities or partialities b y them
the Election Commission has not been given an y independent power to
Constitution, Constitutional Law and Politics 467

inflict immediate punishment or other appropriate measures against them.

Till such power will not be given to the Election Commission there will
be no assurance of free and fair election.
Analysis from broader perspective will give the idea that there is no
alternative of making the Election Commission fully independent; the
flaws and defects of the election laws should be conected and the
Election Commission should be invested with full authority to announce
and conduct the elections. The post of District Election Officers should
immediately he upgraded so that they can gradually take the lead at the
district level in conducting polls. We will see later in this chapter that the
present caretaker government backed by military has taken up steps to
fulfill these lacunae in law.

- Reform Proposals with Caretaker Government

In the political field of Bangladesh the most significant

development was the initiation of constitutional reform of (FG and
electoral reform in 2005. The AL-led opposition alliance unveiled the
reform proposal on JUIV 16 towards an influence free general election.
There were 31 point reform proposals: 5 were with regard to changes
in the formation and jurisdiction of CTG; 15 were with regard to
reforms in the Election Commission to make it truly independent and
11 were with regard to amendment to electoral laws and regulations.
The main proposals were as follows:

Reforms with regard to CTG:

(i) The President would appoint the Chief Adviser and advisers
to the CT(; such persons who enjoy confidence of and are
acceptable to all in consultation with all political parties.

(ii) During the tenure of the CTG, the President would act in all
matters of state on the advice of the Chief Adviser, keeping
parliamentary democracy in consideration.

(iii) During its term, the CTG, in place of the President, would
run the defence rrunistry to avoid any conflicts.
468 Caretaker Government and 3 Amendment

(iv) The jurisdiction of the caretaker govcrnmcnt would he

confined to conduction (l:1V--tO-(la\' work and assisting the
Election Commission in holding the genera] elections.

Reforms with regard to Election Commission:

With regard to reforms of the I dection Commission the opposition
parties proposed the following recommendations:
(i) Chief Election Commissioner and election commissioners are
to he appointed after consultation with political parties.

(ii) The independence of the Election Commission must he

ensured.

(iii) Election Commission must have its own secretariat free from
the influence of the executive.

(iv) Election Commission must be given its full budgetary

freedom and the Finance Ministr y would have no control over
the release of funds.

(v) 'Ile EC must have full authorit y to appoint returning officers,

presiding officers and law-enforcing agencies to ensure
security during the elections, and the government would be
obliged to take necessary action in line with the Commission's
demands.

(vi) The persons involved in conducting the elections would he

under the Commission for a certain period before and after
the polls.

(vii) During the period, the Commission would have the authority
to take immediate disciplinar y action against them for an\
offence and neglect of dut y , and the government vou1d have
to act out the Commission decisions.
Constitution, Constitutional Law and Politics 469

(viii) The (:ommjsslon \voukl be able to postpone or cancel

elections in case if the violation of election laws and rules and
to issue orders of arrest and to punish the violators. During
the election period. it would have judicial powers too.

(ix) The electoral roll \VoUld be prepared maintaining lull

transparency. The roll preparation and issuance of voters,
identity cards would have to be computerised and electronic
voting would have to be introduced.

(x) The returning officer would send the consolidaicd statement

of the election results to the Commission secretarial and only
the Ilection Commission \VOUld announce the results.

(xi) The election tribunals would dispose of any cases involving

election results within two months and any appeal would have
to be disposed of by the Appellate Division of the Supreme
Court within three months.

Reforms with regard to Electoral Laws:

(i) Candidates must make public declaration of their assets and
dependants. All candidates must submit statements of their
election expenses within one month of the polls. Personal
information, including their academic qualifications, source of
income, and account of assets and liabilities are to be
disclosed.

(ii) Black mone y holders, loan defaulters and relatives of loan

defaulters, and persons who opposed the war of
independence and war criminals would be ineligible to contest
the elections.

(iii) .\ ban would have to be imposed on religion- based politics

and oil u s e of religion in seeking votes.

(iv) Ban oil election campaigns.

470 Caretaker Government and 13"' Amendment

However, the I3NP Government did not accept these proposals

and as the time passed for 8th parliament the voices of demands for
reforms became more stronger and this eventually led to the crisis
with the Election Commission and postponement of 9th
parliamentary election.

Election Commission under Political Storm

Justice MA r\zn'., a sitting judge of the Appellate Division was
appointed as the Chief Election Commissioner on 23.! May , 2005
amid a raging political controversy. The announcement of his name as
CF C, by the Government was readily rejected by the main opposition
party Al... And in his first test of capability and intention to hold any
free and fair election in the Narsingdi b y-election, he failed miserably.
The hooliganism exhibited by the thugs of the ruling alliance were
visible in the pages of news media all over, which however, failed to
perturb him. In response to the complaints he commented that "I do
not have miracle power to redress the situation" which only reflected
that it was not the CEC but somebody else who was holding the
'miracle power' to redress any visible wrongdoing in the election
process. Most of the opposition parties also took no time to label him
as 'partisan' CEC. He took a series of decisions with regard to reforms
in electoral roll which were mostly unheard of previously. 53 political
parties the Commission had invited turned up for the dialogue from
July 26 to 28. The BN P-led ruling alliance voiced their support for
fresh voter list while the opposition 15 parties favoured updating the
existing voter list. The Commission eventually decided, on August 6,
2005 to prepare a fresh voter list. l-lo\vever, it was alleged that the
CEC had unilaterally made the decision, ignoring the opposing views
of other election commissioners. The decision also led to constant
bickering over the interpretation of law on the preparation of a fresh
voter list. In fact the law (Electoral Rolls Ordinance, 1982 and
Electoral Rules, 1982) did not allow for the preparation of fresh voter
list while the CEC claimed that it did. This difference of opinion
turned into a court case by way of writ petition. The writ petition
challenged the preparation of fresh voter list under a "unilateral
Constitution. Constitutional Law and Politics 471

decision" of CEC MA Aziz. After hearing the petition tiled by

Asaduzzaman Noor and Rahmat Au, the I ugh Court Division asked
I C authorities to submit the tiles regarding the voter lists of 1990,
1995 and 2000. Disposing of two writ petitions, the Nigh Court
Division on January 4 asked the liC to revise the existing electoral roll
and hold immediately a meeting. 1 lowever, the P.0 had delayed the
implementation of the High Court directives on the voter list for
several weeks on the grounds that it did not receive the copy of the
order. I lowever, bypassing the I ugh Court orders, the PC Secretariat
started the work of preparing the fresh list on 1 1, January, 2006 while
the t'..vo election commissioners have repeatedly been calling for a
meeting. I lowever, the CF ' C did not call the meeting mainl y because
the two election commissioners were united oil revising the existing
list. In the wake of an impasse over preparing a fresh voter list, the
government in a hasty move appointed two more election
commissioners on 17 111 January, 2006 apparentl y to will the Chief
Election Commissioner (CEC) the majority in the commission. 'lhcv
were Justice Mahfuzur Rahman, former judge of I ligh Court Division
and the immediate Pa st secretary to the PC Secretariat SM '/.akaria.
\Vith them, the number of members in the PC rose to five, the
highest in the history of the commission. Rejecting the appoiitmcnts
of two new election commissioners, the Awami League (AL) led 14 -
party opposition coalition announced a dawn- to - dusk hartal (general
strike) across the country on January 22 Mr. Aziz's regime had been
mired in controvers y regarding preparation of voter list over 18
months and he had been criticised for his partisan role even by
foreign diplomats. The Council of Advisers to tile Caretaker
(;o\erntlent from its first meeting on November 1, 2006 started
searching for ways to make the PC credible but the y faced enormous
difficulties as MA Aziz refused to resign forcing the political parties to
hold dialogue for reform of I C. Mr. Aziz was the man who could
spare the nation of the trouble going through political violence for an
indefinite period of time simply by resigning. I Jowever, he was
holding on to his post even after the President's request to do so. On
25' November, 2006 MA Aziz said that he would go oil da ys leave
but did not sa y when. President decided to appoint another two inure
472 Caretaker Government and 13111
Amendment

commissioners under articles 118(1) of the Constitution. President

and Chief Adviser to C1G lajuddin Ahmed announced that \L\ Azii
agreccl to go oil 90 da y s leave. The way Mr. Aziz conducted himself as
the CF C, proved one of two things: either hc is naive or he was
pla y ing some one else's role. In the wake of violent Political unrest
.\tiz went. on three moth's leave. To this effect President and Chief

Adviser made an announcement in his address to the nation on 22lt

November, 2006. After Azix went on leave, the President appoin ted
two election commissioners- Modabbir and Saiful ;\lorn without
consulting his council of advisers and on the subsc1uc11t da y it was
reported in most of the dailies the past political affiliation of these
newl y appointed two election .
commissioner; 14 parry rejected the
new appointments. A fter MA \ziz left, Justice Mahfuzr Rahrnan, a
commissioner proclaimed himself as the actin t CI C although there is
no provision in the Constitution with regard to acting CLIC. Justice
Mahfuz declared that election was to be held within 90 (la y s time and
he last date of submission of nomination papa was fixed 211t
December, 2006 while the opposition parties declared bo y cotting of
election. Although both the Caretaker Government and [C were
strong in holding election within stipulated 90 da y s, the situation was
so complex that a fair election with participation of all parties was
impossible. Voter list correction ended on IS"' December, 2006 with
huge controversy that no proper update was made in the existing
voter list. Initiatives were taken four times to update voter list but
even step had been mired with allegations of irregularities. In a
surreptitious and hasty move threatening to pitch the country into
further p ol itical chaos on 27It November, 2006 the lIC annuunccd
the schedule of election for 9t parliamentary election to be held on
2 P January , 2007; December 10 was to be the last date of submission
of nominatio n papers; December 19 to be the last date for candidacy
vithidraval: December 11 to he the last date to scrutinise nomination
papers. I minen t citizens were surprised as the critical issues
surrouding the (liC and I llcciton Commission were not addressed
before declaring ti l e poll schedule: most of the advisers were kept in
dark about this declaralu)n. The opposition parties rejected the polls
schedule and demanded I IC reconstruction voter list correction
Constitution. Constitutional Law and Politics 473

before polls schedule and the y called for a country wide blockade Until
demands were to] billed. The c]uesrion was raised as to why was the
election schedule declared without informing the council of advisci-s?
\\hv wits it hastil y declare(] lietoic the printing of Voter list WAS
ConlpIctc ( P In all previous elections printing of voter list was
complete heh)rc the declaration of election schedule. In 1996 the
election was lick! on June 12 and the election schedule was
announced oil April, 46 days before the polls. In 20)] election
Was held on i S ( )co >lxr and the schedule was announced oil 9111
August, a 43 cla y s before. I iowcver, in the case of 9 parliamentary
election the schedule was declared o il November and election
was to he held on 2P Janciarv, 2007, :1 da ys before. Thus some
mote da y s could have been waited for casing the controversy \vllich
the eovernnieiit, however, the i-IC did not. According to 9)) clays limit
all clectit in act lvii CS w tuld have to he completed b y January 25, 2(1(17,
it left only 4 din s for all re-pt dltmig activities. ibis vas another proof
that the schedule was announced hurriedl y . on 3 1,1 l)ecembcr, 2006 a
survey report was published b y NI)! (National Democra ti c Institution
I-- International ;\ fturs that a total of 1. 2-22 crorc names registered in
the updated voter list arc either excess or duplicates_

ihe political unrest was increasing clay b y cla y with the uncertainty
of election, pat-usimn role of the ] : c and the President and these
eventually led to interference b y the military and declaration of
emergency onI P h January, 2007.

(On 1 I ebruarv, 2007 the acting (NC Mahfuur Rahman and other
four commissioner resigned as per the rec1uesr of the President. On
I ebruarv, 2008 the F.Icci l o il Commission was formed afresh. \l'NI
,Shaiiisul linda was appointed as the Chief lection Commissioner
and Muhammad Sohul I lossain and Brig Ccii (retd) ?\l Shaklla\vat
I lossani as Commissioners. Since its formation the P n t I C led by
XI'i\l Slumnisul I luda started chalking out a massive plan for electoral
atid sructural rcfrms before going into holding the stalled 9u1
parliamentary election, on 1511, .1 nh 21)(17 the IC announced its plan
of next general election. The announcement was as It dlovs:
474 Caretaker Government and 3 Amendment

• Voter list with photograph is to he completed by October,

200$
• Parties to be registered by June, 2008
• Reform dialogue to he completed by September-November,
2008.
• Election is to be held in December, 2008.

Apart from the above the I C has also voiced its commitment to
complete its internal reforms like ensuring and separating the EC
secretariat from the control of the Prime Ministers office. To this end
a new ordinance named the llection Commission Secretariat
Ordinance, 2007 has been passed by the government with a view to
separating the control of the [C from the Primc Minister's office.

Caretaker Government under Professor Dr. lajuddin

Ahmed
On 27' October, 2006 the 4 Party Alliance government handed
over power as it completed its five years rule. As soon as past Prime
Minister ended her speech to the nation, violence erupted among
supporters of tvo rival political parties in capital and also throughout
the country . It was almost settled that BNP loyalist retired Chief
Justice KM I lasan would he Chief Adviser, and the President lajuddin
has already been Partisan; secretariat and other government agencies
have already been politicised; I lcction Commission along with
electoral roll has in such wa y been manipulated that there was
certainty of the BNP-alhance getting elected in the 9 11, parliamentary
election to be held on 22 January, 2006. There was a ver y tense
political atmosphere throughout the countr y . Amid such situation
Justice KM 1 lasan declared that he was not willing to become the
Chief of Caretaker Government. After refusal b y Justice KM E lasan
without resorting to other available options in the (;omstitution for
appointing a Chief Adviser, the President himself took over a ,, Chief
Adviser. \\'hemi lie (Prcsident-cum-(:hicf Adviser) addressed the
nation and told that lie was not read y at all to assume the office of the
Chief Adviser, but he had to do so to preserve constitutional
Constitution, Constitutional Law and Politics 475

continuity, which was under serious threat due to the critical situation
arising out of confrontational politics and worsening law and order
situation. however, this did not clearl y explain why the President
offered himself as the Chief Adviser before exploring all the
constitutional options available for appointment of the Chief Adviser.
Writ petition filed against this decision b y the President mentioned
that the President without exhausting the mandator y provisions of
Article 58C(3), (4) and (5) of the Constitution, has assumed the office
of the Chief Adviser, violating the oath of office which he took to
protect and defend the Constitution.

The President and I3angabhavan did not follow the mandatory

provisions of the Constitution with regard to the appointment of the
Chief Adviser to the Caretaker Government. When Justice KM liasan
did not accept the post, the President should have followed the other
available options given in Article 58C of the Constitution; or could
have continued discussion with political parties to reach a consensus
before becoming the CA himself; or he should have referred the
matter to the Appellate Division for its opinion before becoming the
CA himself,

As per constitutional provisions in Article 58C the next person

who could take oath was former C) Mahmudul Amin Cliowdhury.
BNP raised objection that Mahmudul Amin Chowdhury did not
qualify to head caretaker government as per the Constitution because
the immediate past former C) before KM I las;in, Mainur Reza
Chowdhurv died and the Constitution provides 110 provision for third
Chief Justice. However, as per rule of the Constitution Justice
Mahmudul Amin Chovdhuty was qualified and he should have been
formally offered the post of CA. However, he was not offered the
post Instead a Bangabhavan official called UI) him over phone and
asked him if he would feel embarrassed in case an offer was made to
him', Justice Amin told that he would not feel embarrassed and was

I)ailv Star. 30I11 October. 2006.

476 Caretaker Government and 1311 Amendment

rather prepared for the responsibility. I lowevci. justice Amin was not
eventuall y offered the P' )5t

If no other (.luct I 050CC isaviilahlc for ihe post, the third option
of the Constitution provides for the 11 mediate past retired justice of
the .\ppeliatc Division. nder this optu in the first person to otter was
Justice NIA ;\zj y who was already 11oidi1L :1 constitutional post as
C C.

The fourth 01)6(111 was retired Justice of ;\ppeiiate Division

F lamidul Ila( 1 ue Who was then serving as Director General of the
tidici:il \drninist at I ion 1rattlInr Institute. The BN P had reservation
aboUt ion> ;II ICI Flu was not also offered the post.

Thus the President in fact ignored these options of the

Constitution before coming to the conclusion that the President must
himself head tile caretaker government, \VI1ICh is not CVCfl the fifth
option but the sixth aiid the last.

Most people in the countn never anticipated that the President

could not find 1 non-party citizen in tile countr y eligible to assume the
post o the Chief Adviser under Article 58C(5) of the Constitution
while 11 11011-party persons are easily found to constitute the Council
ofAdvisers'.

The Question of Constitutionality of the appointment of

lajuddin as Chief of Caretaker Government
I ollo'ei his assumption to tile office of the Chief of Caretaker
Govern lent three writ petitions were tiled in the I hgh Court
Division in November, 2006 which were as follows:
(i) the first challenging the assutllption of the office of Chief
Adviser by the ])resident;

Barrister I larun Uir Rashid. .\ uii-Purtv c(1,ciaker gome;nmenIr is ii iiorkmi:',

I ),Ii l' t>ir. I )eeeniher 20. 2000.
Constitution. Constitutional LaNk and Politics 477

(ii) the second ci llelltnt the Chief A dviser's powers to take

decisions unilaterally \vitholii consultation the wih
Council of Advisers: and
the third Challenging the declaration of the election
schedule prior to the correction of the electoral rolls.

On 30 111 November the pet itloners :iit'ucd that an ullCoflstjtutjoiiai

act does ot become Ct 1151 ittitlonal In of time; that tile
President ins not above the law or the Constitution; that the
interpretation of Article 58(:(])(6) by which the President assumed
the office of tile Chief Adviser was self- serving and wrong.

\\'llcn the matter was being heard, the Attorne y General

submitted that he wished to tile ai application for a larger bench to
hear the matter, given its constitutional importance, and lie court
should therefore not continue to hear tile matter. The Bench of
judges however commented that there appeared to he no precedent
for this, and they were minded to issue ,I and would reconvene at
2 I• I towevcr, tile AG theil submitted that tile judges should reject
the petition outright. it must, however, be emphasised that whatever
order the court would have passed \vou]d not have been a final
judgment \Vltb an y binding consequences.

A Rule Nisi is just the first stage of a motion matter, which in tile
present case would have involved the court asking the Chief Adviser
to show, Cause why lui. assuillption of office should not be held to be
Withou t lawful authority. So tile AG would have ilad ample
opportunity, even if a Rule were issued, to make a full reply, and if
this \vas found Cogent b y the court, cveti perhaps to ( )i)taiil a
judgment in its favour. Bizarrely, the AG wasinsisting that c"en this
preliminary order not be issued and the matter be rejected siiniiiiariiv.

Ihis difficulty was further exacerbated when the AG,

accompanied h Sir. \iuudud .\hmcd and others rushed it) the Chkf
!uticc's office to nht;iiii an t:I\ order. Sadh, the (itiuf Justice of the
(hId urn, iii an tinuisual displa y of Constiiuii lila] ju wcr, supped
M Caretaker Government and 13 "' Amendment

the proceeding of the Bench. The Chief Justice's stay order came
minutes before the Iligh Court bench was to issue a rule. Shocked by
the order, lawyers and others present in the court burst into anger and
vandalised different sections of the Supreme Court, and set fire to the
vehicle of the state minister for law, justice and parliamentary affairs.
This step b y the Chief justice was seen by man y as unprecedented in
the judicial history . It is unprecedented that a Chief Justice stayed a
preliminary order of Rule Nisi to be issued for show cause purpose
only. Although the immediate past BNP led 4 party alliance found this
as an acknowledgment of 'victory', it have pulled off an
unprecedented and gross manipulation of judicial process 4 . The lofty
image of impartiality and neutrality of the apex court as the defender
and guardian of our Constitution has seriously been hampered by the
unnecessary interference of the ChiefJusuce.

lajuddin as Chief Adviser and affairs of the CTG

Notwithstanding the constitutional validit y of his assumption of
power as the Chief Adviser to the Caretaker Government, Dr.
lajuddin Ahmed made the first serious mistake by monopolizing the
major ministries thus showing little trust in his council of advisers.

He deployed army on 91h December, 2006 ignoring strong

opposition from his advisory, council and most of the advisers
thought that the current situation in the country did not call for any
army deplo y ment. Since the calling out of arm y is a decision of the
Chief Adviser, not of the President, can the Chief Adviser do it alone,
disregarding the opinion of his advisers? In terms of the Constitution,
the non-party caretaker government is collectivel y responsible to the
President (Article 5813(2)). The efforts to end the then prevailing
political crisis reached a stalemate due to the President's objection to
the sending of Ftlection Commissioner .1 akaria on leave.

Commented by 1 brnier ChiciJustice Mustafa Kamal.

Sara I Iossain. Bar-ai-I.av. Jkvon/ Coniein,n. Daily Star. 4"'December. 2000
Constitution, Constitutional Law and Politics 479

It was alleged that the Chief Adviser was not acting in accordance
with the advice of the council of advisers. Many of the advisers
publicly admitted in the media that either the y did not know of the
decisions made b y Chief Adviser or knew them only from
newspapers. Such communication gap between the Chief Adviser and
advisers of the non-party CIG is not within the contemplation of the
constitutional arrangement. According to the provisions of Article
5813(3) "the executive power of the Republic shall be exercised in
accordance with the Constitution b y or on the authority of the Chief
Adviser and shall be exercised by him in accordance with the advice
of the Non-Party Care-Taker Government". Thus, the word 'shall'
indicates that seeking advice from advisers are mandatory for the
Chief Adviser and he cannot act or take any decision on his own5.

Notwithstanding the massive protest against his failure to be

neutral, and the writ petitions in the I ugh Court Division, the
President-cum-Chief Adviser of the C'lG appeared to have
succumbed to the pressure of his benefactors by granting tacit
consent to announcement of the election schedule. Pitiably enough
the ten advisers had not been taken into confidence on the issue.

After the CEC A ziz went on leave the President appointed two
election commissioners- Madabbir and Saiful Alom without
consulting his advisers.

He also made the EC announce an election schedule hurriedl y on

November, 27 keeping the Advisor y (;ou1cil in the dark.

Besides, the Chief Adviser on November, 22 addressed the nation

without discussing the advisers who described the speech as the
President's very own. Being upset b y the CA's unilateral action, some
advisers even refrained from attending office the following day.

Unlike before the caretaker government under President lajuddin

Ahmed has been commented as one man show caretaker government.

Barrister Ilaru ur R ash i. . thice /ir the (hie/-Iciri.v(,,-. I)a i IN Star, I)ecernher. 3.
2006.
480 Caretaker Government and 3 Amendment

The wa y lajuddin Ahmed conducted the affairs of the caretaker

government that it had left advisers very much neglected and
incrginalised. The Important decisions \vcrc taken unilaterally
sidelining the advisers and making them feel ignored and irrelevant.
I 'our advisers (Dr. Akbcr ,\lj lKIian I lasan Maslihud (:howdiiurv and
CM Shafi Sami) resigned in protest on II December, 2006.
Although the President appointed another four advisers oil
December, he did not initiate an y move to improve the prevailing
Situation within the council of advisers where other advisers have also
expressed their discontent with the President's method. Mr. lajuddin
failed miserabl y to distinguish the Iwo constitutional posts he had
been holding. lie could not rise above a party preference. iie was
Openly acting in favour of the interest of the BNP and its alliance
partners disregarding the views of other advisers: or even he did not
bother taking advice from his advisers. lie was pushing the country
into a grave crisis: a threshold of political chaos, lie was titled by
people and media as 'vcsuddin' for partisan role as a (Thief Adviser of
caretaker government. As a result of his partisan role the Al. including
other opposition parties declared that the' would not accept an y polls
under lajuddin and M:\ ,\zil.. 'l'hev claimed that lajuddin as the Chief
Adviser was the main obstacle iii creating a congenial atmosphere for
a free and fair election,

9 11, National Parliament election was scheduled to be held on 22'

January , 201)8. 1 {ovcver, the political crisis started to deteriorate from
ailuary S after the Al. led grand alliance declared to bo ycott and resist
the January 22 election.

There have so tar been three t'k'ctions under three successive

caretaker dovcn1mcnts in tile post-dleillocratic era..All three caretaker
governments conimiuided almost universal respect at the time of their
tenure. The chief advisers have all along been committed to consult
all his advisers before taking an\ decision: although controvers y over
the role of the caretaker go'crI]tncnt ma y have been getierated in
2t 1W election, no such challenge to he legitimacy of the c:irctaker
government prevailed as it li't'(.hil1iiLited this time under the
Constitution, Constitutional Law and Politics 481

President and Chief Adviser Dr. lajuddin Ahmed. The credibility of

the present Election Commission has come under challenge to an
extent not seen during the course of last three elections.

The President is not a part of the CTG and therefore cannot

legitimately exercise powers over the council of advisers. The
President has to act on the advice of the Chief Adviser Eke he acts on
the advice of the Prime Minister. Therefore any action of the
President as regards the EC not based on, or contrary to the advice of
the council of advisers is liable to be illegitimate. Only in two respects
has the President been given powers independent of the CTG: (i)
promulgation of emergency; and (ii) administration by himself of the
laws related to the defence services qua Supreme Commander. On all
other matter the President is as titular as under an elected
government. Dr. lajuddin is both the Chief Adviser and the President.
It is difficult, if not impossible, for one person to exercise powers and
to enforce accountability for exercise those powers.

Problems with Caretaker Government:

(i) The executive power of the Republic rests with the Chief
Adviser and his Advisory Council. It is desirable that the
administration of the defence services should come within
the purview of the caretaker government and not on the
President alone.

(ii) The President of Bangladesh is not elected on a bipartisan

or consensus basis among political parties represented in
the parliament. The ruling part y nominates the President,
who is elected b y members of parliament. Jr is entirely at
the discretion of the majority party to propose the name
of the President, either non-party person or member of
the party. Against this background, the provision of the
eligibility of the President as a last resort to hold

Mashiur Rahman. Crisis at the EC. Daily Star. 04.12.2006

31
482 Caretaker Government and 3 Amendment

concurrently the post of the Chief Adviser of the non-

party caretaker government arguably defeats the whole
purpose of the caretaker government.

(iii) In 2001 the Chief Adviser, after approval of the council of

advisers, wanted to amend the Penal Code (Amendment)
Ordinance but the President did not agree. Since same
person occupies both the high offices, there appears to be
no second opinion on any proposed action7.

(iv) It is also suggested that it has not been prudent to involve

retired chief justices to be eligible for holding the post of
the Chief Adviser which is an executive post. It is counter
to the spirit of the doctrine of separation of powers on
which the Bangladesh Constitution was founded.

(v) There have not been any criteria enumerated the provision
for the President to appoint a citizen to hold the position
of the Chief Adviser, if he failed to appoint an y retired
chief justice or judge if the Appellate Division of the
Supreme Court.

(vi) The phrase "no retired chief justice is available" employed

in Article 58C(4) lacks clarity and is confusing. The phrase
is open-ended and therefore has been interpreted
differently. For example, does it refer to a pool of retired
chief justices or only two retired chief justices (last retired
and the next before the last) as mentioned in Article
58C(3), ruling out other retired chief justices.

(vii) The powers of the chief adviser have not been spelt out
clearly in relation to what the chief adviser can do, or
cannot do, without the advice of the advisers. The absence

Barrister Harun ur Rashid. Army on the Sijeet: J1'iII it serve the intended
purpose? Daily Star, 12" December. 2006.
Constitution, Constitutional Law and Politics 483

of such provision has led to confusion as to what

"collective responsibility" means under Article 5813(2) of
the Constitution.

90 Days embargo in the Constitution

The BNP led 4 party alliance was committed that 9
parliamentary election was to be held within stipulated 90 days as
specified in the constitution and there could not be any violation of
this mandatory rule. On the other hand, the opposition led 14 party
demanded reforms in election laws, election commission and
caretaker government and until those reforms were done no election
would be participated by the opposition parties. Out of this 'no-move'
stage by two parties there emerged the issue of extension of the
constitutional time of 90 days. Constitutionally the CTIG has to hold
the election within 90 days after dissolution of the previous
parliament (Article 123(4)). Can this time be extended any how? It is
suggested that the Supreme Court may condone the extension of time
to hold election of 2007. After all, the Constitution is for the people
and for their rightful cause, the court can exercise that power even if
there is slight deviation from the strict constitutional provisions and
this is permissible under the doctrine of state necessity'. However,
President Ijauddin Ahmed did not adhere to this suggestion.

Caretaker Government backed by Military and led by Dr.

Fakhruddin Ahmed
As the country was heading towards a complete civil war because
of political clash between two main political parties killing at least 30
people and leaving injured thousands, the President, with the
intervention of the military declared emergency in the counL-y on 11th
January, 2007 suspending most of the fundamental rights. Nine
advisers to the lajuddin Caretaker Government resigned and senior
most adviser justice Fazlul F-laque took the charge of acting Chief
Adviser. The President admitted in an address to the nation that there
was flaws in the process of updating ongoing voter list. He also stated
that it was not possible to hold free and fair election with such voter
list within 90 da y s and as such the election schedule to be held on 22
January, 2007 was declared postponed. On 12 11, January Dr-

8 Barrister Rafique-ul-1loque. Doctrine of Stale ,V ecessi/v. Daily Star. 04.12.2006

3111
484 Caretaker Government and I Amendment

i'akhruddin Ahamed former governor of Bangladesh Bank was

appointed as the Chief Adviser to caretaker government. On 131,
January five advisers were appointed and on 16' january another five
advisers were appointed to the present caretaker government.

Having taken the charge the CTG cracked down on corruption

and pledged to hold credible election in 2008. By February 10 the
CTG arrested bigwigs of both the political parties who were hitherto
untouchable corrupt bigwigs of BNP and AL. Ministers and MPs 20
in number were arrested and sent to jail in charge of anti-state
activities, sabotage and corruption. subsequently another 170 key
political leaders, businessmen and public servants on charge of graft
and abuse of power were arrested. With the promulgation of
emergency and military backed caretaker government a new order
emerged in the political arena of the country.

For more details of the activities of this government please see

chapter 24.
Constitution, Constitutional Law and Politics 485

CHAPTER XXIV

CONSTITUTIONALISM IN BANGLADESH:
ITS START AND PROBLEMS
Constitution and Constitutionalism
Constitution and constitutionalism are not synonymous.
Constitutionalism is used to mean limited government or rule of law or
constitutional government. The existence of a constitution in a country
dues not necessarily indicate the existence of a constitutional government
there. Again, a country without a constitution, may still have a
constitutional government. So constitutional government does not mean a
government according to the constitution; it means a democratic
government according to laws as opposed to arbitrary or despotic
government. According to professor de Smith -
Constitutionalism is practised in a country where-
i) the government is genuinely accountable to an entity or organ distinct
from itself;
ii) elections are freely held on a wide franchise at frequent intervals
iii) where political groups are free to organise in opposition to the
government; and
iv) where there are effective legal guarantees of fundamental civil liberties
enforced by an independent judiciary.]
Professor K.C. Wheare says that constitutional government means
something more than government according to the terms of a
constitution. It means government according to rule as opposed to
arbitrary gvoernment; it means government limited by the terms of a
constituion: not government limited by the desires and capacities of those
who exercise power.2
From technical point of view, there is no constitution in Britain; the
governmental powers in the British constitutional system have nowhere
been delimited like a written constitution; nowhere is it specifically laid
down as to which particular acts the government is unable to carry out;
neither is there any authority in Britain to punish the government if it
carries out any arbitrary act through parliament. However,

dc Smith. S.A.. The New Commonwealth & its Constitution. (Londan: Stevens &
Sons. [964). P. 106
Whcarc, K.C. Modern Constitutions, (London: Oxford University Press. 1975), P. 137
486 Constitutionalism in Bangladesh

constitutionalism has existed in the British constitutional system for a

Ion period; British people are enjoying their basic human rights in a
more guaranteed way than they are guaranteed in a written constitution.
The reason behind such a development is that though the powers and
functions of the British Government have not been delimited by a written
constitution, the constitutional conventions regulating the exercise of
governmental power have developed through ages and they have, through
repeated political practice. become constituional norms 1 i.e. as binding as
laws. This is why the British Government, violating the conventions,
dares not carry out any arbitrary action. Besides this, the educated public
opinion in Britain acts as a strong vigilance to safeguard the
constitutional government. So Britain has no constitLition but it has a
strong constitutional government. On the other hand, Mayanmar, for
example, has a written constitution but it does not have a constitutional
government. In a real sense there is no distinction between rule of law

Constitutional Norm: constitutional norm, iii other words, means constitutional rules
which imposes political and sometimes legal obligation upon the persons who are
associated with the functioning of the governmental powers. Constitutional norms of a
country may be of two types - Legal norms and Non-legal norms. Constitutional legal
nono means those written constitutional provisions which impose obligation over the
persons associated with the governmental pOO'rS and which are cnlbreeable by courts
of law. For example, rules concerning royal prerogatives in Britain have originated
front common law and the British courts call their limits and call
them as well. Likewise in Bangladesh Constitution provisions relating to fundamental
rights, executive, legistative, judiciary etc. are all constitutional legal norms. Because
almost all of these provisions are enforceable by the Supreme Court. On the other
hand, there are some rules which impose obligation over the persons associated with
the governmental powers but they are not enforceable by the courts. These rules may
he called constitutional non-legal norms. In other words, these are called conventions.
For example, most ofthe British constitutional rules are conventional i.e. they are non-
legal norms. In Bangladesh the rule as to the appointment of the Chicfiustice has been
a conventon i.e. a non-legal noon. Because there is no constitutional obligation on the
part of the president to appoint the senior-most judge of the Appellate Division of the
Supreme Court as the Chief Justice: he can appoint any judge of the Supreme Court to
this post. But it has been, through a long time uninterrupted practice, like a
convention to appoint the judge as Chief Justice who is senior-most among the judges
of the Appellate Division. It is pertinent to mention here that in Britain legal norms
can be of two types - statutory norms and common law norms. See. Turpin, Cohn,
British Government & Constitution., (London: Weidcnfield & Nicotson. 1990), P.4
What is norm ? —to get answer to this question please see Hans Kelsens General
Theory of Law and State (New York: Russel & Russet, 1961) PP. 30-64. Kelsen says
that a command or rule is a norm onl y if it is binding upon the individual to whom it
is directed, only if this individual ought to do what the command or rule requires."
(Ibid. P.31)
Constitution, Constitutional Law and Politics 487

and a constitutional government. Because the tenii rule of law' is not

now limited to the three principles as propounded by A.V. Dicey. In real
sense rule of law does not mean rule by the government under democratic
laws only; it is more than that. Rule of law means rule by the government
under such democratic laws in which a government's responsibility can
be ensured and the fundamental rights of the citizens are guaranteed i.e.
they have an easy and effective way of enforcing their rights.

The Weary Way to Constitution alisni from the

Sub-Continent to Pakistan
The 200 year history of the British rule in the Sub-Continent bears
testimony to the fact that in the British period there was both law and
government and subsequently three constitutions were also given. But till
1947 when the Indian Independence Act was passed, constitutionalism
remained to the people of this Sub-Continent a beckoning on the horizon.
The end of the East India Company's rule in 1857 followed the direct rule
of the British Government. The Briti c h Government kept the 'colonial
democracy' alive here; political democracy could not be established till
1947. because lull rights in the formation and in the control of the
government were not given to the people of this land. From 1861 the
British Government began the policy of democracy 'by instalments or
doses'. The Indian Council Act of 1861 first made an attempt to establish
contact beween the government and the governed by way of creating
opportunity for Indian people to take part in the making of laws for India.
Afterwords through the Indian Council Act, 1892 and the Morley-Minto
Reforms of 1909 the number of Indians was increased both in the
Legislative Council and Executive Council. Then came the two
Constitutions of British India - the Government of India Act, 1919 and
then the Government of India Act, 1935. Though both the Constitutions
provided for a parliamentary form of government and Indian elected
representatives could participate there, they were not given full rights in
the formation and in the control of the government. It was the Indian
Independence Act. 1947 which created for the first time a congenial
atmosphere to practise and develop constitutionalism in both Pakistan

See, details. Choudhury, G. W . Democracy in Pakistan, (Dhaka: Green Book house,

1963)
488 Constitutionalism in Bangladesh

and India. It provided in essence a big transition - a transition from

colonial democracy to political democracy in India and Pakistan. The
Constituent Assembly for Pakistan created under this Act was a
sovereign body composed of elected representatives of Pakistan. The
Assembly was given the duty to frame a constitution and absolute power
to act as a central legislature for Pakistan. Thus the Assembly had the
power to exercise control over the cabinet; the cabinet was responsible to
the Assembly; the Governor General's previous discretionary powers
were abolished and he was turned into a titular head. However, due to the
absence of a strong political party system and especially the abuse of
power by the Governor General the Constituent Assembly could not work
properly and as a result the first Constituent Assembly had to face a
dramatic collapse'. Likewise when Pakistan took its first Constitution in
1956, it had all the trappings of a responsible government; almost all
favourable conditions were laid down in the Constitution so that a
constitutional government could flourish in Pakistan. However, due to
the lack of a well organised and disciplined party system and undue
interference by the Heads of the state with the ministries and political
parties i.e. the lack of sense and respect towards the spirit and cLilture of
parliamentary democracy, the start of constitutionalism in Pakistan faced
a serious setback and lastly that start ended in failure when the military
government took over in 1958.

The Start of Constitutionalism in

Bangladesh and its Problems
The same fate of constitutionalism as Pakistan had to experience
came to be the realities in the start of constitutionalism in Bangladesh. It
was a long cherished aim of the people and the leading party Awami
League's commitment on its way to movement for autonomy in the then
East Pakistan to establish a parliamentary government which would be
directly responsible to the elected representatives. To that end in view,
the first bold initiative taken by Sheikh Mujib in the independent
Bangladesh was to change the system of government from presidential
which was working during war time to parliamentary one. But this

For details. Sayeed. Khalid [3, The Political S ystem in Pakistan. (Karachi: Oxford
Unitersity Press, 1967). and Choudhur y. GW. Democracy in Pakistan, Ibid.
Constitution, Constitutional Law and Politics 489

change was not more than a mere expression of sentiment of Mujib since
it was a change in the form only which enabled Muib to redesignate his
position as the Prime Minister in place of the President'. Because as
mentioned earlier2 though the change provided for a parliamentary
system, the Constituent Assembly which was to act as parliament was
neither given the power to make law nor to exercise control over the
cabinet. 3 The cabinet was not, therefore, accountable to anybody. Both
the executive and legislative powers remained concentrated ill the hand
of the President. Thus at the very start of its journey constitutionalism
received a setback in Bangladesh.
Then on 16th December, 1972 the Constitution of Bangladesh came
into force. Except some minor weaknesses 4 it was a healthy Constitution
which provided almost all favourable conditions of a responsible
government. Taking a bitter lesson from the abuse of power and
destructive role of the President in the Pakistan politics tile framers of tile
1972's Constitution of Bangladesh limited the powers of the President in
strict terms. However a good Constitution does not necessarily produce a
constitutional government and democracy is always more than a mere
form of governnleilt. 'ihe success of a collStitutiOilai government depends
necessarily upon the democratic spirit of toleration, devoted sense of
respect and relentless response towards the institutionalisation of
democracy. In a new country with fresh start of democracy the ruling
party or the leading leader Should have a genuine interest to develop
constitutionalism, it should respect the public opinion and the opinion of
the opposition; it should resolve all political disputes in a democratic way
without resorting to any repressive measure; it should encourage and help
grow and develop a strong opposition; to build up honest and devoted
future leaders and above all, the leading leader should, howsoever
powerful his charisma be, institutionalise his charisma rather than
personalise so that this may act as an inspiring instance to he followed
by the incoming leading persons. UnfortLinately for the SL1ccCSS of
constitutionalisni in Bangladesh under the 1972's Constitution what role
was played by the undisputed charismatic leader of the nation Sheikh
Mujib have been found to be very fraustrating both as the Prime Minister
and the leader of the AL.

Ahivied. Moudud. Bangladesh: Era o[.Sheikh 4/u/thur Rahman. Ibid. P. 9

See, P. 37 of this hook.
WhY was not the Constituent Assembly given legislative power? See. PP. 140-142
For weaknesses and flaws. See. PP. 43-48 of this hook.
490 ConstitLitionalism in Bangladesh

First, an essential institution of a parliamentary democracy is the

President or King or Queen who is a titular head of the state. Although he
is a titular head, he has three rights in respect of the governance of the
country- right to be informed, right to encourage and right to warn. It is a
constitutional duty of the Prime Minister to inform the President about
the day to day administration and decisions of the cabinet and to seek
advice from him. But in the first phase of Bangladesh politics (1972-75)
Mujib, the Prime Minister had clear-cut and absolute supremacy over the
two ceremonial heads of the state, Abu Sayeed Chowdhury and
Mahmudullah. Neither of them had the courage or conviction to stand up
against any arbitrary or unconstitutional action of the Prime Minister.
Neither could they demand the reverence and courtesy normally accorded
to the holder of such an office.' This is why Justice Abu Sayeed
Chowdliury was not happy being a titular head under the dominating
shadow of Sheikh Mujib. He felt himself like being in a case. He wanted
to be freer and do something productive for the country.2
Second, in parliamentary system the Prime Minister is regarded as
one among equals' meaning that every minister of the cabinet has a role
to play in decision-making and it is the duty of the Prime Minister to
create an environment in which every cabinet minister can participate
equally in decision-making. But relations between Mujib and his cabinet
colleagues were those of subordination rather than 'one among equals'.
Mujib used to treat his cabinet colleagues more like a cabinet in a
presidential system where the President's decisions are accepted no
matter whether they are shared by cabinet majorities or not. Mujib was so
proud of his charisma and he used it with such a gravity that no cabinet
minister could raise voice against MLLjib's decision. 3 It has been
commented that the first political order of Bangladesh during the Mujib
era was more in the nature of a 'prime minister's dictatorship' than a
genuine parliamentary one.4
Third, the great wrong of Mujib was that he, instead of
institutionalising his charisma, started a process of personalisation and

Choudliury. Dilara. lb/cl, 11.36

Ahmed. Moudud. i/aug/ac/es/i Era of Sheikh Sliijihur Ra/unan, Ibid. 11 .228 & 230
(1ootnotc-24)
Sec. Clioudhury. Dilara . Ibid. l'.30
Ahmcd. Moudud. /3a/ i /ac/es/7 Era of Sheikh A lujibur Rahinan, [bid, P.259
(Footnote-9)
Choudhury. Dilara. Ibid. P.36
Constitution, Constitutional Law and Politics 491

this personalisation of governmental process posed a serious threat to the

functioning of constitutionalism in Bangladesh. As a result of such a
trend all activities and policies of the government came to be the
activities and policies of Mujib as a person. Parliamentary government is
always a party government and as a party government the cabinet has to
feel the Pulse of the party before it takes any decision. The cabinet should
not take any decision going beyond the policies and objectives supported
by the party. Again, the party never advises the cabinet to take any
decision which would go against the public opinion or national interest.
Thus a check and balance work between the government, the party and
the people whereby the government becomes more responsible. However,
Mujib used his towering charisma in such a dictatorial way that lie
himself became the Awami League 3 and infact his activities and party
management were so dictatorial and repressive that lie was not only the
Awami League Party, lie was also the political order 1-11mself. 4 Such a
dictatorial attitude of Mujib destroyed the Awami League as a party
ever thin g became synonymous with Mujib as a person. It gave rise to
the politics of personality cult towards Mujib it destroyed cohesion and
discipline within the party which eventuall y resulted in factionalism
within the Awami Lea gue and also within the Chatra League—a student
organisation under the umbrella of Awanii League. 'It hampered the
orderly succession and recruitment of leadership.'
Fourth, to maintain democracy within the party as well as within the
governmental level the posts of party president and the leader of the
parliamentary party or the head of the government should not be held by
the same person. Parliamentary form of government is a party
government. As a party government the party from outside should retain
a sort of control over the government or the parliamentary party so that
the government or parliamentary party cannot transgress the policies and
programmes of the party on the basis of which the party has elected them.
In other words, this principle prevents the government from being
dictatorial disregarding the policies and manifestoes of the party. On the
other hand, when the same person holds the posts of both the party
president, and the head of the government, it tends the party to be more
powerful than the government and when the party becomes more
powerful than the government, it may quickly destroy the democratic

Alimed. Moudud. Bangladesh. Era o[Sheikh A lujibur Rahinan, Ibid. 11.234

Choudhury, I)ilara. Ih/d, 11.37
Choudliury. Dilara. Ibid. P.216
492 Constitutionalism in Bangladesh

institutions in the country. In the first phase of Bangladesh politics

Sheikh Mujib was the head of the government ( as the Prime Minister );
he was also the head of the party (as the president of the Awami League).
This combination of dual power in one hand is contradictory to the norms
Of Constitutionalism.
Fifth, one of the methods of enforcing the government responsibility
under parliamentary system is the committee system in parliament. The
most important committees are the Public Accounts Committee (PAC)
and Standing Committees on Ministries. However, in the first parliament
during more than 2 years of its life no ministerial committee was
formed. 2 As a result, scrutiny over the activities and responsibility of
different ministries could ned he ensured in the first parliament.
Sixth, the post-hucgetary financial responsibility of the government
is enforced through two powerful organs - the Comptroller and Auditor-
General (CAG)— a constitutional body and the PAC in the parliament.
The main function of the CAG is to audit the accounts of the Republic to
ensure that the moneys approved by parliament are spent for the purpose
intended and in an effective and efficient manner. After such auditing the
CAG lays its reports to the parliament directly. In all democratic
countries the CAG is all of parliament; he is responsible only to
the parliament. Since responsibility to audit all the public accounts is
vested upon the CAG, he and his whole staff should be fully independent
Of the executive. The complaints or observations made in the report by
the CAG is again scrutinised by the PAC of the parliament and in doing
this examination the PAC call the accounting officers of the
concerned ministries; it can take evidence in public; question other
witnesses. In all democratic countries PAC is headed by a senior MP of
the opposition. However, in Bangladesh though the PAC was formed in
the first parliament, it was headed by a Treasury Bench Member. Again,
unlike other democratic countries, the CAG has been made responsible to
the President and not to the parliament.' Moreover, unlike the system of

Sec details. Chapter XI

See section 2(2). 6(t) of the Bangladesh Comptroller and Auditor-General Order (P.O.
No. 15 of 1972). The provisions in the Order expressl y violated the constitutional
provisions. I asked Dr. Kamal I lossain who was then the law Minister how , he could
suggest for such an unconstitutional law ? Dr. I lossain by-passed the question saying–
If )OU think it uncoiistittitioriat then go to court and the court will declare it
unconstitutional." I made a counter question—Sir, do you want to say that this Order
is constitutional and .alid ?' He told that the provisions of the Order may be
interpreted in two ways.
Constitution. Constitutional Law and Politics 493

other democratic countries there is no provision in Bangladesh for

consultation with the PAC in respect of the appointment of the CAG. The
whole staff of CÁO including his audit section has been kept under the
executive control of the Ministry of Finance. Furthermore, unlike in India
and Britain the CAG in Bangladesh does not have authority to conduct
performence audit; it only prepares annual audit report.
Thus from the very outset this vital organ of constitutionalism has
been kept handicapped. And still the CAG is in such a handicapped
position. The success of the PAC especially in respect of ts financial
control over executive depends mostly on the fruitful activities of the
CÁO and since the CAG is tightly handicapped so has been the role of
the PAC. In the first parliament the PAC did not make any report) Thus
the first parliament could not fulfill its role to ensure the executive's
financial responsibility. It is pertinent to note here that the PAC in
Britain submits about 40 reports a year in the House of Commons and a
selection of them are debated on one day per session.2

The PAC made no report in the 1st parliament. in the 2nd parliament it submitted one
report. During the martial law regime of Ershad an adhoc PAC prepared three reports.
The 3rd parliament did not form PAC. In the 4th parliament the PAC submitted 2
reports. And in the 5th parliament it submitted 4 reports.
In the advanced countries like the USA. UK the PAC is very active and effective in
seeing that the money sanctioned has been spent with econom y, efficiency and for the
purposes. But in Bangladesh such an important institution has not been properly used.
for: (a) the legislature itself was not in existence for many years; (b) even when the
legislature was in existence, the PAC was not appointed in time: (c) tightly
handicapped position of the CAG. Since the audit section of the CAG has been kept
under the executive control of the Finance Ministry, the most serius problem in the
functioning of the PAC has been caused by the government. Because the government
had not regularly submitted the audit reports to the legislature. Thus 17 audit reports
on Defence. Railwa y , Foreign Mission, Postal Department. T & T Board, Semi-
Government and Commercial organisations were submitted to the parliament after 14
years on the 11th July. 1990 and the Finance Minister could not put forward
satisfectory explanation for such unusual delayed period during which hundreds of
pages of the reports were destroyed by worms and insects. (The /trefaq. daily Bengali
New paper 12.7.1990)
The PAC in the present 7th parliament is chaired by A.S.M. Akram. a government
party MP. I asked him about the progress of the functioning of the PAC. lie told that
the committee like its predecessor is facing a huge backlog of audit reports and a great
portion of their time is being spent in disposing of these old cases. Ilic Committee
meets 4 times in a month. Does the Comrni1ee has any plan to meet more frequently to
settle the pending cases? In response to this question he said t}'at the members seem to
reluctant to meet even four times a month, for they are very ill-paid for their committee
functions.
494 Constitutionalism in Bangladesh

Seventh, for the success of a parliamentary government a strong and

responsible opposition in the parliament is a sine qua non. Unfortunately
in the first parliament there was no opposition as such. Out of 315 seals
AL had 306 and out of remaining 9 seats Jatiyo Samajiantrik Dal had 2,
Jatiyo League I and Independent got 1.3 This negligent opposition was
not any organised opposition and hence there was no opposition leader;
Ataur Raliman Khan was an unofficial leader. Mujib also emphatically
and neglectfully claimed that there was no opposition in Bngiadesh.
'From the point of view of numerical strength Mtjib was correct but he
was forgotten that this was the worst that could happen to help the
growth of a democratic system in the country" . ! Though it was negligent
Mujib should, for the sake of political development in Bangladesh. have
treated this feeble opposition as all in the parliament and
thereby helped functionin g a democratic system 2 . As like as the AL the
Congress r y in India after its independence led the journey of
parliamentary democracy with its dominating absolute majority. But this
Congress-dominated one party system in no way hampered the
functioning of the Indian parliamentary system. The success of Indian
parliamentary system was possible due to the leadership quality of
Nehru, the democratic structure of the internal organisation of the
Congress party, clear-cut policy preference, and criticism and sLiggestions
Put forward by the parliamentar y committees. The Nehru government,
inspite of having an absolute majority, treated and behaved with the
opposition with the respect a parliamentary opposition deserves. This is
why parliamentary democracy in India has, in the mean time, taken an
institutional shape on a firm basis.
Eighth, the Election Commission is one of the most important
institutions of consttutionlaism. A pre-requisite of democracy is the
selection of representatives through a fair and free election system. To
conduct a fair election the independence of the Election Commission and
the cooperation from the government to that end is equally needed.
Though the Election Commission in the first general election in
Bangladesh had constitutional independence, it was trodden down by the

Ahmned. Moudud. Bangladesh: E,a fS/iejk/m tlujibur Rb/anon, Ibid, P. 146

A hmed. Moudud, Bangladesh: Era o/Sheikh A lujibur /?ah,nan, Ibid. I'. 146
2
In one party Singapurian parliament the ruling party assigns the task of
opposition to its back-henchers. All ruling party members except ministers
perform the role of opposition in debate. they however, can criticise only the
details of i mplementation, not the principles of the policy.
Constitution, Constitutional Law and Politics 495

negative attitude and activities of the ruling party. When news started
pouring in that some central leaders of AL were losing some important
seats, the Central Election Campaign Committee constituted earlier to
handle the election affairs was completely by-passed and the
responsibility of formulating strategies and actions were taken over by
the control room at Gonohhavan (Prime Minister's Office).When frantic
telephone calls started pouring in from the candidates who were likely to
be defeated, the government machinery including Jatio Rakkhi Bahini
was alerted and orders were sent to help out those candidates who were
in trouble. As the counting started indicating sure victory for some of the
opposition candidates, helicopters were flown out to render assistance
and at least in half a dozen constituencies entire ballot boxes were
removed and replaced with new ones. It is true that the AL would have
won the election with an overwhelming majority in any case. At the most
if the central leadership of the AL had not intervened, the opposition
would have won an additional 20 seats.' But what attitude the AL
government adopted in the first election had a far-reaching fraustrating
consequences in the development of constitutionalism in Bangaldesh.
The chance of development of electoral democracy in Bangladesh was
nipped in the bud. 2 As another commentator said—unnecessarily there
was rigging during elections to parliament under the new Constitution,
giving the AL an overwhelming majority. No viable democratic
opposition was allowed to emerge". 3 'The Awarni League followed an
electoral strategy of overkilling the opposition. Its policy of putting
maximum pressure to win every parliamentary seat virtually wiped out
the opposition parties from the parliament."4
Ninth, a talented and constructive political leader always tries, with a
sacrificing sentiment, to settle all political problems in a democratic and
compromising way. However, instead of adopting democratic methods

Ahmed, Moudud . Bangladesh: Era of Sheikh .11ujihur Rohman, Ibid. P. 144

Sec also Talukder Maniruzzanian. ibid, P. 157
See W alter Schwartz. "lIon' Bangladesh lost its Political I erginitv", Guardian
(London). reprinted in the Weave' (Dacca), March 31. 1973: .Scc also Scrajul Ilossain
Khan. "Electoral Deniocracv Buried"
llolidav (Dacca) March 18, 1973. (Talukder.lbid. I'. 191)
Banerjee. Subrata . Bangladesh , ( New Delhi : National Book Trust. 1981). 11.59
Jahan. Raunaq. Bangladesh Politics . Problems and Issues. (Dhaka IJPI.. 1980).
P.82
See also Ahmed. Abut Mansur. ".!mar L)ekho Ila/nhtir /'onchash liachar" (Filly Years
of Polities as I saw it) (Dhaka: Nowroj Kitabistan. 1975).1 1 11 . 610-612
496 Constitutionalism in Bangladesh

and techniques Sheikh Mujib began to deal with the opposition forces in
a dictatorial way. This led him to resort to measures such as preventive
detention and emergency power in order to deal with the growing
political unrest, thereby undermining and weakening the democratic
process and constitutionalism which lie himself founded in 1972. If the
founding leader Mujib did not incorporate all these undemocratic
provisions in the Constitution no subsequent leader or government would
have dared to incorporate them in the Constitution.
As a leader of the movement for autonomy to independence of
Bangladesh Sheikh Mujib was successful but there is a wide distinction
between pre-independence Mujib and post-independence Mujib. In the
former he is like an unparallel leader of the history; a man of immortal
fame. This is why lie was garlanded by people with title like
'Bangabandhu' (peoples' friend). But in the latter i.e. as the
Prime Minister or leader of the nation-building struggle for Bangladesh
his role was very disappointing. This is why a commentator goes on to
say that Mujib was a fine Bangabandhu but a poor Prime Minister.'t
Tenth, the first parliament as the most vital instrument of
democracy remained throughout its life a cinderella parliament. This
parliament could have been, with the spirit and enthusiasm of the
national liberation war, turned into the most active instrument on the way
to institutionalisation of democracy. However, the ruling elite did not
desire so; they kept the parliament as a mere show-room. The overall
performance of the first parliament is very pathetic. In it the average
number of sitting days a year was 53 only; in India the average number of
sitting days is 110; in UK it is 150 and in Canada it is 145. It is a
recognised principle of the functioning of parliament in almost all
civilised countries that more is national problems more is the functioning
of parliament. In time of national emergency or grave national problems
the parliament sits without any break. But in Bangladesh parliament the
opposite was the case. The new born country was facing repeated
problems like law-making, rehabilitation, policy formulation, policy
implementation, corruption, smuggling, deteriorated law and order
situation, freedom fighters, arms recovery, collaborators, abandoned
porperties, nationalisation of industries, production in fields and
factories. Unfortunately parliament was not allowed to take any effective
role in solving these problems; all were dealt with by the whim of Mujib

Ziring, Lawrence. Bcmgaldesh: Form 44ujib to Ershad, (Dhaka: UPL, 1992), P. 85

Constitution, Constitutional Law and Politics 497

which virtually undermined the role and institutionalisation of parliament

as an institution of democracy. The first parliament made 154 Acts in
total out of which 90 originated from ordinances amounting to 58.44% of
the total law made by it. In all the House accepted 5413 starred and 27
unstarred written questions. The number of short-notice questions was 30
starred and 11 unstarred. Though a considerable number of questions
were answered the Question-Hour in the first parliament generated
neither much interest nor any debates on public policies. Interestingly, as
the over-all socio-economic problems as well as law and order situation
deteriorated,, the number of questions declined. During the 8th session
there was no Question-Hour at all. In this parliament most of the
questions dealt with constituency interests whereas only a few related to
national policy. A few questions were asked about a mysterious fire in
the jute godowns in various parts of Bangladesh. The issues raised by
MPs and answers given by the ministers were not tackled the way they
should have been, in order to scrutinising the defects of the
administration. During the Question-Hour debates are not supposed to
run along the party line but most Treasury Bench MPs were apprehensive
and extra-careful not to step out of line.' The familiar parliamentary
procedure of the adjournment motion, used to call attention to problems
of government, was not allowed although there were daily repoDts in the
newspapers about the deteriorating law and order situation espially
about the clashes occuring between Rakhi Bahini and the radical forces.
By late 1973 and early 1974, the situation had deteriorated to such an
extent that the government had to deploy the army to handle it.
These are the reasons from constitutional point of view which are
responsible for the failure of constitutionalism at its first phase in
Bangladesh politics. And lastly when Mujib introduced one party
dictatorial system in place of multi-party democratic system, he actually
gave his finishing blow to the candle of constitutioralism which was till
then flickering for full shine. The new dictatorial system adopted by him
was fully devoid of any sign of further development of constitutionaiism.
In the new system there remained no freedom of speech, thought aid
conscience, for no free press was allowed; no right to form or join a
party; no fundamental right to be enforced through an independent court.
Thus the system was a total negation of constitutionalism.

. Choudhury. Dilara . ibid, P. 118

32
Constitutionalism in Bangladesh

Military Rule and the Myth of

Constitutionalism in Bangladesh
Mujib said his primary role on returning to Bangladesh following the
conclusion of the civil war was to rebuild the country's political-
administrative institutions. Mujib did not deliver on that promise. Having
reached a moment when the only instrument of government lay in the
utilization of violence, the question that emerged centered on where the
violence would be directed. Mujib must have belieyed he could punish
his enemies i.e. anyone who challenged his supremacy. Indeed, Bhutto
shaid thought two years later. But Mujib as Bhutto too was to learn, had
the violence visited upon himself.' Mujibs constitutional dictatorship
was overthrown by a bloody military coup in which Mujib and his entire
family (with the exception of two of his daughters who were abroad)
were assassinated. Martial Law was declared ousting Mujib's civil
government; the army emerged as a powerful political force; and the
body polity of Bangladesh faced a new and unexpected era of military
rule. The nature of military rule is that it comes to power ousting a civil
government completely in an illegal way; it never comes to give
democracy. The first military ruler Major General Ziaur Rahman began
to civilianise his regime gradually. This civilianisation came to an end in
1979 when the Constitution 5th Amendment was passed legalising all
military activities. Martial Law was withdrawn and the Constitution was
allowed to continue as the supreme law. But the governmental system
was fundamentally retained as an authoritarian as was introduced by the
4th Amendment; of courses, some undemocratic provisions introduced by
the 4th Amendment were removed and some relations among the
institutions of the government were liberalized. The governmental system
was neither a true presidential as is practised in the USA nor a
parliamentary one as is practised in the UK. Neither was it the same
presidential as is practised in France where the Prime Minister and his
cabinet are collectively responsible to parliament. The presidency as
modified by the 5th Amendment was much more powerful than the
presidency under the French Constitution. The system lacked the
principle of cheeks and balances. The system was, therefore, a class
apart; an all powerful executive ridden presidential system which armed
the President with all devices to administer his dictatorial rule. This
model bore more similar to that of Ayub Khan of Pakistan. The executive

Ziring, Lawreflce, Thid, ?. 102

Constitution, Constitutional Law and Politics 499

authority was vested with the President who was directly elected by the
people for a period of five years although without a limit to the number
of terms in office. Once elected it was quite impossible to remove him
from the office, for the impeachment procedure as introduced by the 4th
Amendment was unprecedentedly a difficult one. All extra-ordinary
constitutional devices like emergency, ordinance-making powers,
preventive detentions etc. were retained which armed the President to act
almost in a dictatorial way. The President was also the chief legislative
initiator through his power to address and to dissolve the parliament.
Also the power of the parliament was kept restricted like that of a rubber-
stamp body. Zia's system was, therefore, neither a fully democratic
government nor was it an ever hated dictatorial one as introduced by
Mujib. It was a multi-party presidential system blended of democratic
and autocratic features. Though most observers believe in Zias sincerity
concerning the country's development programmes and his faith in
Bangladesh's destiny, his leadership was flawed due to his inability to
build political institutions. While in power, he depended more on
civilian-military patronised bureaucratic institutions than on political
ones. His encouragement of factionalism in the opposition parties and his
use of the legislature as a 'rubber stamp created serious complications for
the sound grouth of constitutionalism'.' The trend of civilianisation by
Zia was smashed by the imposition of second time martial law by Ershad
in 1982. Parliament was dissolved; the Constitution was suspended and
all political activities were banned. Following the path of Zia Ershad
began to civilianise his regime and martial law was withdrawn after 4 and
half years when the 7th Constitution Amendment was passed legalising
all military activities. Though Ershad civilianised and legalised his
regime he, unlike Zia could not gain support from the people, for he
lacked Zia's charisma and liberation war credentials and remained solely
depended upon the military for his survival. Throughout his autocratic
rule-8 years and 9 months— the longest period in the constitutional
history of Bangladesh, the issue which haunted Ershad was the question
of his legitimacy to govern the country. There were continuous
movements against Ershad regime and on his way to suppress this
movement he amputed almost all institutions of democracy. During his
regime the election process in Bangladesh became a total farce and
mockery. Through unprecedented electoral malpractice Ershad destroyed
the electoral process in the country. Ershad amended the Constitution as

Choudhury, Dilara, Ibid. P.217

500 Constitutionalism in Bangladesh

many as four times and every time he did it for his own political end. He
retained the presidential-parliamentary mixed system introduced by Zia;
he retained the parliament as a secondary rubber-stamp body; all
autocratic measures like preventive detention, emergency, ordinance-
making powers were wilfully used by him; the press was repressed;
radio, T.V. etc mass-media were wilfully used as the sole mouth piece of
Ershad. Threre are many instances that not only demeocracy but good
autocracy or military dictatorship which at least believes in real nation-
building can usher in economic development in a country South Korea,
Indonesia, Mayanmar etc. bear the testimony of such example.
Unfortunately Bangladesh did not deserve even any of such type of
autocracy.
During the long term of military rule the institution which has been
mostly damaged but which is 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, many
experienced political leaders left their original parties and joined new
parties created by military ruler; and on the other hand, mashroom
growth political parties devoid of any ideology or programme were
created by money-power just to give a democratic poster to the election
of the military ruler. The Ershad regime was toppled by a popular mass-
movement in December 1990 when the military withdrew its support.

Second Start of Constitutionalism and its Problems

In 1990 the country was freed from the clutches of military rule and
the peoples' sustained struggle for democracy at last triumphed with
autocrate President Ershad and the time came to lead the nation on a new
journey in search of constitutionalism. The second start of
constitutionlism had its peaceful transit through the historic 5th
parliamentary election under the Acting President Justice Sahabuddin
Ahmed. In 1991, by the 12th 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
however, the celebrated 5th parliament like many of its predecessors
could not complete its constitutional duration; it was to dissolve under
the pressure of the opposition movement. The ruling party BNP has, in
many ways, failed to make a positive turn towards the development of
constitutionalism.
Constitution, Constitutional Law and Politics 501

First, it is the primary responsibility of the government to make

parliament work. But the ruling elite miserably failed to transform
parliament into a centre forum of all political activities. The major
Opposition party AL was not given adequate time in parliamentary
deliberation and as a result they boycotted the parliament. The ruling
elite did not show much tolerance as was necessary for bringing the
opposition into parliament and they forcefully run the parliament as long
as two years without the opposition i.e. ignorin g the opposition. Though
both the government and the 5th parliament during this two years without
the opposition were valid from legal point of view but they had no
political legality. Lastly the BNP government decided to hold the 6th
parliamentary election ignoring the opposition and it proceded 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 lack
of political foresight. This is why the 6th parliament had only 7 days life.
This negative trend in parliamentary democracy i.e. the trend of political
intolerance by the BNP government has proved once again the crisis of
constructive leadership in the development of constitutionalism in
Bangladesh.
Second, in a democratic polity the forum for policy formulation and
declaration is only the parliament. However, in the 5th parliament the
BNP government could not overcome the wrong done by Mujib, Zia and
Ershad. Like all other previous government heads Khaleda Zia declared
almost all policies in public gatherings and press conferences avoiding
the parliament. To be noted that while Lord Weatherill was the Speaker
of the House of Commons once he heard Prime Minister Mrs. Thatcher
had made a statement to the press on a very important matter and he was
not told that she was going to make that statement to the House of
Commons. He quickly phoned up to 10 Downing Street to say that Mr.
Speaker presumed that the Prime Minister would come to WestMinster at
3:30 that afternoon in order to make a statement to the House of
Commons. The Prime Minister replied that it was impossible, for she
would be busy to meet the Speaker from Malaysia and for that reason she
made the statement to the press. Lord Weatherill said 'But Prime Minister
the place to make statement is not to the press, however good they may
be, but to members of parliament and you must never seek to sideline the
House of Commons". Then the Prime Minister did come and made her
statement in the House. Likewise some years ago India Prime Minister
502 Constitutionalism in Bangladesh

Narasima Rao addressed a seminar at Singapore. During question time a

participant asked him when his government would make the Rupee full
convertable. He smiled and said, "If I tell you this here, my parliament
will take me to task. These decisions must be first told to them. I have to
disclose this decision first in the parliament." This trend of
parliamentary culture has yet to start in Bangladesh. To start such a
culture the only requirement is sincerity and respect towards
parliamentary principles.
Third, the Prime Minister is the centre person in the government; at
the same time she/he is the leader of the House. She has great
responsibility to make parliament work; to inform parliament all activites
of his government; to answer questions for a specified period in the
House. However, in the 5th parliament Khaleda Zia almost avoided
parliament; she did not regularly attend the sessions; she did not answer
questions; she did not take part in debates; she did not make policy
statement in the House. All these were against the concept of
institutionalisation of democracy.
Fourth, the departmental standing committees in parliament work as
constant watchdog against the ministries. However, all of these
committees in the 5th parliament remained ineffective, for ministers of
respective ministry headed the committees. If a minister who himself will
be scrutinised by a committee heads that very committee, the
scrutinisation becomes a mere farce only.
Fifth, even the military dictator Ershad appointed an opposition MP
as the chairman of the PAC but the BNP government appointed a
Treasury Bench MP as the chairman of the PAC. Not only that, the whole
department of the CAG including its audit department was kept, as was
done in previous regimes, dependent on the Finance Ministry making
virtually the constitutional body ineffective.
Sixth, the most abuse of the Special Powers Act has been done by the
democratically elected BNP government. The largest number of detenus
so far in Bangladesh under this law was 6497 in the year of 1992' . But
the government was not satisfied with the only draconian law of the
Special Powers Act; it, therefore, resorted to another draconian law— the
Anti-Terrorism Act. Such a trend of use and abuse of black laws in

Choudury, Nazim Kamran, The Mirage of Parliamentary Democracy-11 the Daily

Star, June 3, 1996
For details, See, Chapter XVI
Constitution, Constitutional Law and Politics 503

peace-time by a democratically elected government substantiates its

autocratic character particularly in respect of protecting personal liberty
of the citizen.
Thus the public expectation of the 5th parliament at the re-starting of
parliamentary democracy which rose significantly with enthusiastic
participation in the election lastly faced a bewildered feedback when the
BNP government also took the same course as was done by all previous
governments.

7th Parliament:
However, the toiling masses of Bangladesh again participated in the
7th parliamentary election under the neutral Caretaker Government with
same hopes and aspirations and the majority voted for the AL. This
parliament completed its full life with the AL in power. Compared to the
5th parliament very few developments would be noticeable in the 7th
parliament. Most of major policies had been declared in public gatherings
rather than in the parliament. Special Powers Act had been used in a
competitive way; the culture of boycothing parliament by the opposition
parties was a norm rather than an exception and the Prime Minister Sheik
Hasina just provoked this trend; sessions of Parliament had been held for
a very shorter period; Departmental Committees were formed after 18
months of the inauguration of the parliament; the PAC was still chaired
by a government party MP though it was the AL's pre-election
commitment that if they would come to power, the PAC would be headed
by an opposition MP; the CAG was still in the amputed position;
important mass media like radio, television were being used as
government mouth pieces. However, there has been marked improvement
in one area and this is the resorting to ordinance making power. The
number of ordinances promulgated in between two sessions gradually
reduced to almost zero. Second credit which Sheik Hasina may claim is
that she introduced PMQT in the House. Third credit lies in the change
that unlike before minister will not chair the Ministerial Standing
Committeees.

8th Parliament:
8th Parliament completed its tenure without the participation of the
opposition and as a result it failed to focus as a forum of national interest
and issues. From the very beginning of its life the opposition parties
started boycotting parliament and remained outside parliament until
504 Constitutionalism in Bangladesh

almost the end of it. Compared to the 7th parliament the Prime Minister
Khaleda Zia in the 8th Parliament does not deserve any credit in starting
or taking any initiative to start any move towards constitutionalism.
Parliamentary committees were formed after one and half year of the life
of the parliament and that was done without any participation of the
opposition; major policies were declared in public gatherings and
seminars rather than in the parliament; the Special Powers Act had been
used almost in a competitive way; the government seemed to have been
champion in the breach of its pledge as to implementation of Masder
Hossain case as it declared that it would take another six to seven years
to complete separation of the lower judiciary; though resorting to
ordinance making power is not in the rise still a very important piece of
law affecting personal liberties has been done through ordinance. This is
the promulgation of Combined Operation Indemnity Ordinance. The most
important post related to the parliament is the speaker and this post is
also a constitutional post. Speaker is constitutionally committed to
maintain independent and impartial balance between treasury bench and
the opposition. However, very regrettably the speaker Barrister
Jamiruddin Sirkar in the 8th parliament failed to maintain that balance.
The main opposition party refrained from attending the sessions,
citing the reason that the speaker was openly biased in favour of the
treasury bench and the opposition were not given the floor to speak
on important issues.

The Speaker in the 8 11 Parliament

The main opposition parry in the 81 parliament refrained from
attending the sessions, citing the reason that the speaker was openly
biased in favour of the treasury bench and the opposition were not
given the floor to speak on important issues. Once elected to the post
he has to act in a non-partisan wa y , treating all parties equally.
However, the speaker of the gth parliament Barrister Zamiruddin
Sirkar miserably failed to discharge his function as an impartial
speaker.

First in one incident a deputy minister harassed a journalist and

the minister was very angry with it and he wanted the parliament to
pass a law to curtail freedom of press. The speaker suggested the
government to institute laws to curtail freedom of press and the
speaker suggested this in the absence of the opposition.
Constitution, Constitutional Law and Politics 505

Second, in another occasion the opposition wanted to discuss

price hike of essentials in the market and the speaker told the
oppostion that the government was taking steps to prevent price hike
and that the issue should not be discussed in the parliament.

Third, President Tajuddin Ahmed vent to Sigapore on 16 11, July

2007 but he did not delegate his power to the speaker of the
parliament as the requirement of the Constitution. Article 54 of the
Constitution specifically states that if a vacanc y occurs in the office of
the President or if the President is unable to discharge the functions
on account of absence, illness or an y other cause, the Speaker shall
discharge those functions until a President is elected or until the
President resumes his office as the case may be.

Fourth, the speaker Zarniruddin Sirker had drawn Tk. 28 lac as his
medical bill ignoring official objections. This was reported in dailies in
July 2007. According to General Financial Rules no authority should
exercise its power for sanctioning expenditure to pass an order that
will be directly or indirectly to his own advantage. It was suggested
that the Speaker's privileges did not provide for any facilities which he
exercised on his own to draw medical bill for which the permission
from the Prime Minister would have been a must'.

The BNP led 4 Party Alliance Rule: (2001-2006)

gthi parliament election was held on V , October, 2001 and the

BNP formed its 4 parry alliance on lOts October, 2001 headed by

Prime Minister Khalcda Zia. On 27" October, 2006 this government
handed over power to a constitutional caretaker government after
completion of its five year terms. However, the hand over was not at
all peaceful as its confronting relationship with the opposition parties
and its failure far outweigh its success. The Prime Minister Khaleda
Zia claimed the following as her government's success:

Success claimed by the BNP:

(i) Establishment of Anti-corruption Commission
(ii) primary and mass education

1 Daily Star. 1 8th July 2007.

506 Constitutionalism in Bangladesh

(iii) providing increased stipend for students

(iv) tackling unfair means in public examinations
(v) arranging free education for girls up to 12th classes
(vi) welfare measures for teachers and age olds
(vii) taking several steps for child development
(viii) banning polythene shopping bags
(ix) increasing health facilities
(x) conducting drive against food adulteration
(xi) subsidy for agricultural development
(xii) boosting exports
(xiii) appointment of 80,000 young people.

Failure of the BNP:

The BNP-led qualition government at the very fag end of its
tenure gave mass promotion to civil servants entirely on
political considerations, apparently for taking them on its side
during the election. According to source in the
Establishment Ministry, a total number of 2,380 officials
were promoted in the different tires of bureaucracy during its.
tenure, resulting in the record number of officials getting
OSD status due to lack of vacancies 2 . State offices have been
used for BNP activities (August 16, 2006, Daily Star). Rush
for ministerial decision for purchasing government
procurements deals which had been rejected earlier by the
same body. Cabinet purchase body okayed 17 projects
hurriedly despite flaws in many bids.

• Age of Justices in the Supreme Court was increased with

political motive, i.e, in view of incoming national election to
be run by caretaker government which was to be headed by
the Chief justice retired last.

Repeated violation of the order of the Supreme Court in

Masder Hos.cain case.

2 ANM Nurul Haque. Bucazicracy in disarray. Daily Star, December, 3. 2006.

Constitution, Constitutional Law and Politics 507

The government formed alliance with Jamat-i-Islarni, a

religion based party in the country and this party instigated to
the incidence of rising militancy in the country. The menace
of militancy was another problem for the BNP Government
in power. A series of bomb blasts across the country on
August 17 was a demonstration of the fire-power and the
network Islamist militants had developed over the years. The
militants target was the judiciary in the country in 2005. After
series of bomb blast on 17th throughout the country on 14th
November a suicide attack left two senior assistant judges
killed in Jhalakati.

• Allegation of establishing dynastic elements into politics;

giving back-up power to Tarek Zia who in behind controlled
the cabinet and secretariat and the whole political system of
the country. At the same time he raised a group who became
famous for corruption throughout the country.

• Although Anti-Corruption Commission was established by

this government, arrangements were made in the law in such
a way that it remained a paper tiger. It was neither in a
position to bring any action against political big-wigs who
were corrupted nor could it fix its own organogram.

• The parliament remained ineffective throughout the regime

as the opposition boycotted the parliament since its early life
and it was the main duty of the Prime Minister to bring the
opposition back to parliament.

• As the parliament was ineffective, the committees in

parliament which are considered as powerful watchdog of
democracy could not play any role to make the government
responsible.
508 Constitutionalism in Bangladesh

• Election Commission as an institution of democracy wa

amputed to the sweet will of the 4 part) alliance government.

• The post of the President as an institution of democracy was

also damaged to such an extent that it went down to
designation 'yes! Boss!' or 'Yesuddin'.

• The post of the speaker of the national parliament as an

institution of democracy was destroyed.

• Failed to curb corruption as the party allowed dynastic

elements to creep into the body polity of the whole system

• On 21st August Khaleda Zia declared that Qawami

madrasha degree would get master's degree status which
has been termed as playing politics with education by the
government at the fag end of its term.

• RAB Rapid Action Battalion was formed under the Armed

Police Battalions (Amendment) Act 2003 and it launched its
formal operations on June 21, 2004. The members of this
elite force were picked up from amongst the competent
members already serving in the army, air force, navy, police
and BDR. Extra-judicial killing by cross fire by RAB
personnel came out in the country as another political flaws
of the ruling party. The criticism began to mount as lifeless
bodies of listed criminals and terrorists and their sidekicks
begun to pile high on a roadside ditches on a daily basis,
although there is no provision for extra-judicial killing in the
Constitution. Human rights bodies, media and civil society
watchdogs refused to allow.them the extra-judicial power of
killing. From Ii January, 2004- 30th June, 2005 total people
kill d by cross fire by RAB was 101. This number was 186 in
2006.
Constitution, Constitutional Law and Politics 509

The seed of political controversy was sown on May 16, 2004

when the BNP-Jamat-Alliance government had amended the
constitution to extend the retirement age for judges to 67
years from 65. This was viewed by the opposition parties as a
conspiracy to appoint retired chief justice as the chief of the
caretaker government before the 91h parliamentary election.
This Chief Justice was Justice KM Hasan who was quite well
known as BNP loyalist. From then on AL kept on voicing
that it would not accept retired Chief Justice KM Hasan as
the Chief of the caretaker government. Instead of responding
to any of the objections of AL, the BNP-led alliance
government's unilateral actions in connection with a
controversial voter list, appointment of CEC and other
election commissioners, deepened the animosity between the
rival political parties. When the affiance government handed
over power on 27th October, 2006, it was almost settled that
BNP loyalist CJ KM Hasan would be CA, and the President
lajuddin has already been partisan; secretariat and other
government agencies have already been politicised; election
commission along with electoral roll has in such way been
manipulated that there was certainty of the BNP getting
elected in the 91h parliamentary election to be held on
January, 2006. There was a very tense political atmosphere
throughout the country. Amidst such situation KM Hasan
declared that he was not willing to become the Chief of
Caretaker Government.

The Second Start of Constitutionalism Haulted again

Military backed Caretaker Government
On handing over the power b y the 4 Party Alliance government
on 27t11 October, 2006, violence erupted among supporters of two
rival political parties in the capital and also throughout the country. It
was almost settled that BNP lo yalist retired Chief Justice KM Hasan
would be Chief Adviser, and the President lajudilin has already been
partisan; speaker has pla yed his partisan role throughout the life of 8th
510 Constitutionalism in Bangladesh

parliament; secretariat and other government agencies have already

been politicised; Election Commission along with electoral roll has in
such way been manipulated that there was certainty of the BNP-
affiance getting elected in the 9th parliamentary election to be held on
221 January, 2006. There was a very tense political atmosphere
throughout the country. Amid such situation Justice KM Hasan
declared that he was not willing to become the Chief of Caretaker
Government. After refusal by Justice KM Hasan without resorting to
other available options in the Constitution for appointing a Chief
Adviser, the President himself took over as Chief Adviser. The
already tensed political situation became furious resulting in killing
almost 30 people and injuring thousands and against this background,
the military interfered for the third time into Bangladesh politics and
the President lajuddin was forced to declare emergency suspending all
fundamental rights on 11th January, 2007. A new political order
emerged in polity of the country- a caretaker government headed by
Dr. Fakhruddin Ahmed backed by military.

At the dawn of our independence back in 1971, we thought that

dictatorial rule in our country was over once and for all- but we were
wrong. When the last military ruler was forced to step down in 1990,
we thought we would come under a sound civilian rule- but we were
wrong again. After the assumption of power of a democratically
elected government a year later, we thought that a proper political
process would now begin— but we were wrong once again 3. Sadly, still
today, a full decade and one quarter of a century after our
independence, politics in Bangladesh remains decadent, old fashioned
and directionless. The babies who were born during our liberation war
are all now adult men and women in their mid-30s. Much time has
passed and with the passage of time everything has changed but
tragically Bangladesh's politics has not changed.

Syed Badiuzzaman. W e need politics that helps a nation, not hurls it, New Age,
iOth January. 2006
Constitution, Constitutional Law and Politics 511

As mentioned above, Bangladesh parliament has become a

constant victim of disturbing trend of politics of boycott for the last
15 years since the beginning of a democratic process. Used as a purely
temporary strategy by political parties or groups or labor unions to
voice their dissent against an action or policy or plan by the authority
in the past, boycott has now become a feature of Bangladesh politics.
After the first democratically held elections, when the BNP formed
the government, opposition Awami League lawmakers staged a
prolonged boycott of parliament. In other words, in the 5th
parliament, the lawmakers of the main opposition Awami League
started boy cotting Jatiya Sangsad from the 13t1' session and did not
turn up till the dissolution of the parliament in 1996. The seats of the
AL lawmakers were vacated at the 201h session on June 19, 1995 after
they remained absent from parliament for 90 consecutive working
days.

In the wake of the second general elections for 7th parliament,

when the Awami League formed the government, opposition BNP
lawmakers did the same thing. The BNP as the opposition joined
parliament at the maiden session and started boycotting the house
from the 13 ,h session. Between the 13 th and the 23rd session, the last
session of the seventh parliament, the BNP joined parliament only to
save their membership because if an MP stays out of the parliament
for consecutively 90 days, he loses his membership in the parliament.

After the last election in 2001, when BNP returned to power with
its coalition partners, opposition Awami League legislators switched
to their old strategy of boycotting parliament once again4.

At the root of all political problems of Bangladesh he the

animosity and lack of trust, compassion and accommodation between
the two arch rivals and the largest political parties of the nation— the
ruling BNP and the Awami League. The two parties have been at

' Sved Badiuzzaman. We need politics that helps a nation, not hurts it. New Age,
10 January, 2006
5 12 Constitutionalism in Bangladesh

loggerheads for many years. After Ershad's exit from power, their
animosity continued to increase as they continued to fight for power.
The two firebrands heading the two parties prime Minister Khaleda
Zia and the Leader of the opposition in parliament Sheikh Hasina
have barely maintained even talking terms between them. Although it
is not very unusual compared to other countries in South Asia, the
leaders of the largest political parties of Bangladesh have tendency to
often go as far as to accuse each other of treason5.

Military backed CTG in 2007 and Aftermath

As mentioned above, on llth January, 2007 a new order emerged
in the politics of Bangladesh and this is the CTG led by Dr.
Fakhruddin Ahmed and backed by military. Law adviser of this CTG
Barrister Moinul Hossain once declared that this government was a
military backed CTG and there has to be an exit route for this
government. However, the following day Military Chief Nfoin U
Ahmed stated that the government was not a military backed CTG; it
was a constitutional CTG and the military was giving necessary
assistance to the civil administration under the normal constitutional
arrangements. Reforms and activities of this Government so far have
been detailed in brief below:

Constitutional Review Commission

On 10 11, July, 2007 Army Chief Moin U Ahmed said that the
constitution should be reviewed through a 'Constitution Commission'
for preparing new laws and mechanisms to ensure accountability and
effective governance. He stated the an elected government may
undertake the constitutional review after elections are held by the end
of 2008 when a constitution commission might be formed. This is not
only an important issue but it also goes to the heart of the present
political malaise in the country. Many political leaders of major parties
have also realised that intra- party political reforms are not enough for
genuine, democracy, and have also suggested some constitutional

Sed Badiuzzaman, We need politics that helps a nation, not hurts it. New Age,
JO' January. 2006
Constitution, Constitutional Law and Politics 513

reforms wIth a view to running an accountable government and

parliarnenO.

It is suggested that the Commission should consider the following

list of issues:
• Should the tenure of the Prime Minister be limited to two
terms, since the tenure of the President has been limited to
two terms under Article 50(2)?
• Should the number of ministers, stare ministers, deputy
ministers and advisers, or persons having status of minister/
state minister/ deputy minister he limited to only 10"
elected members of parliament?
• Should the speaker, after being elected, cease to have any
affiliation to any political party , for neutrality?

• Should there he certain number of women candidates for i'\ils

be clearly spelt out, including the do's and don'ts? Should they
be limi ed onl y to law- making functions?

• Should the powers of the president and the Prime Minister

operate as checks and balances on each other?

• Should all state institutions, including the Hection

Commission, Anti-corruption Commission, Ombudsman,
p
Auditor General and ublic Service Commission be separated,
strengthened and made independent of the government?

• Should retired persons of higher judiciar y be involved in any

part of the administration? Should former Chief Justices
Continue to be the Chief Adviser in non- party caretaker
governments?
• Should there be a National securit y council for coordinating
securit y and other national issues?

Iuirkicr larun ur Rtshid. C onsIlluIjona/ Retjeii' ( omsissirm. I)ai k Star. .Iulv

18. 200.

33
51 Constitutionalism in Bangladesh

• Should an y political part' not gaining 5°/s of popular vote in

the parliamentary election be denied representation in the
parliament, or not recognised as a registered lawful political
party?

Emergency and Arrest of People

\round 286,000 people including former ministers, lawmakers,
political leaders and business tycoons have been arrested across the
countv on charges of crime and corruption since the state of
crncirgcncv was declared on January Ii, 2006. Of them police
arrested 260,000, Rapid Action Battalion about 9000 and the army-led
joint forces over 17000 throughout the country. Among them were
about 600 listed criminals. The high profile arrests were made after
Chief Adviser Fakhruddin Ahmed's caretaker government declared
war on corruption and criminal godfathers.

Minus-Two Formula
This formula suggests that country's two main political parties AL
and BNP should be reformed by retiring or removing their present
chairpersons. This is because these two parties are responsible for
current political conditions and they should accept the blame and step
down. Opponents of this formula argue that the minus-two formula is
undemocratic as the selection of leadership is a prerogative of the
party council. The party councilors can choose anyone as the party
leader, and keep him/her as leader as long as they wish. However,
people must have choice to elect their leader but if the same leader
holds on to the party chairmanship, there will be no choice left to the
People. Thus the argument that the party councilors can chose anyone
as their party chief and keep him or her leader as long as they want- is
not consistent with the theory and principle of democracy. Therefore,
the minus-two formula, although referring to two specific persons is,
indeed, a general principle of the democratic political system. Nlorc
specifically, this formula is key to a lasting cure for our ailing political
pa mesS.

Dail y Star. Jul y II . 2007.

Khandakar Qudrat-i-Elahi. /jnus-tiio Joiinu/a. .-t Democratic /n1eipieIfliw7.
Dail) Star. Juk 19. 2007.
Constitution, Constitutional Law and Politics 515
Formation of National Government
It has been suggested that one way out would be the creation of a
national government of all the panics. 'Ihc idea has been around since
before the arm y intervened to install civilian interim government in
-,I

anuarv 2007. But, if freed, the former prime ministers are more likely
to pursue revenge than co-operation. The same goes for the 200-odd
other politicians and businessmen locked up in the anti-corruption
drive.

The National Security Council:

It has also been suggested that a National Security Council is to be
formed to formalise the army's role in politics, as in Pakistan 10 . At
present in Bangladesh generals are simir Supporting the civilian
caretkcr government, but some Bangladeshics favour setting up a
securit y council to give the militar y a more formal role in the
government. There should be mechanism that the military can play
SO

its role in policy making' 1.

Truth Commission:
On 27th March, 2008 the caretaker government has made a draft
of Voluntary Disclosure Ordinance, 2008 which contains the
provision of establishing the Truth and Accountability Commission.
The draft details that the Commission will consist of three members
and will continue for six months onl y . First 30 days will be fixed for
those who will come forward for voluntary disclosure. A person
willing to make voluntary disclosure will have to apply within 30 days
of establishment of the Commission, while anyone referred b y NCC,
ACC or court will have to apply within 60 days. The ACC (Anti-
Corruption Commission) or NCC (National Coordination Committee
on Corruption and Serious Crimes) or even a court may refer a person
to appear before the Iruth Commission. Section 9 of the draft states
that those who voluntarily make disclosure to the Commission and
are pardoned by the Commission will not be allowed to take part in
elections or be members in o tliorate bodies. Again, that very section
C

9 stipulates that such a bar may not appl y to individuals who, under

' Looking for the Exit. TheEeonomisi. 7 Feb. 2008.

Lookinc tör the Exit. The Lconomisi. 7 Feb. 2008.

Hassan Shahriar. Power P/. Dail Star. 27th Jul y . 2007.
516 Constitutionalism in Bangladesh

certain provisions of sect ion 6, volun tartl y come 0 rth to disclose the
Sources of their ille th y acjuircd vealtlt. This is a fundamental
cant tadlCttofl in the drat law and this iiiithi iiiale tile \Vll()IC purpose
of the law iewiniless.

Wh y Truth Commission: 'I'll(, IdL.i of Truth Commission

emerged in 2(06 is an alternative to dcaliiis' with graft cases and graft
suspects to give the offender ., opportunit y to admit their culpability
and he penalvscd monetaril y instantly iistead of prolonged legal
process and conviction b y courts. However, legal experts suggested
that this arrangement goes to the counter of Anti-Corruption
Commission and its activities and it has man y loopholes as a system.

Election Commission Separated

The Caretaker Government passed a new ordinance named the
Election Commission Secretariat Ordinance, 2007 with a view to
separating the control of the l:C from the Prime Minister's office.

Other Reforms undertaken by the CTG:

Anti-corruption Commission, the Election Commission,
and Public Service Commission have been reformed and
they have earned the appreciation of the nation. In
general, the caretaker govettiment has succeeded in
convincing people that an impartial, non-partisan
administration is at work.

• Coming into power the CTG started crusade

corruption b\ . leaders. As many as 240 people.
217 of whom have been in politics, were however,
convicted and sentenced to jail in connection with 61
cases. The highest number of cases were brought against
been at tile
Tarkjue Rahman, the man who had allegedly
centre of the rampant corruption that had permeated
every sphere of the society in the five years of the
immediate past regime of BNP-Jamat led fur-part
alliance government.

When the Caretaker Government started campaign against

corruption, there was high expectation among people that
Constitution. Constitutional Law and Politics 517

tliose responsible for damaging the universities and

educational institutions would be brought to task. Several
vice-chancellors appointed on political considerations are
al1ctcd to have coiniiiitted massive corruption. I xceptmg
one or two of the former vice-chancellors who are
ahsc )ndiug, the others seem to be enjoy ing immunity
to >111 prosecution and the y have been a1lovcd to return to
their original posts.

• Abolition of politics b y students, teachers and workers.

Iection Commission made a proposal to the
Government for amending the existing regulations to
prohibit the political parties

Registration 01 political l)U.

The Way Forward?

Corruption allegations against the two party leaders seem to have
done little to dent their popular appeal. The begums have won at least
70 of the popular vote in every election since the end of the last
y regime in 1990 After failing to send them into exile last year,
militar
or to convince the parties to ditch them, the army must now trust that
judges will convict them both. L]ndcr new electoral rules, this \vould
bar them from the next election. But the legal cases seem ill-prepared
and credible convictions V. It seems certain that the calls to
unlikel
release the two women will intensify. In the absence of other leaders,
this gives the army a choice: democracy and the two begums or no
begums and no democracy . I)etermincd not to let them hack, the
generals, it is feared, may choose the latter course12.

of democracy which are beset with hazardous problems hampering the

development of constitutionalism in Banladesh.

1. Parliamentary Committee System

Please see chapter XI

2. The Election Commission

As mentioned earlier (chapter XXII) the weakness of the Election
Commission and its lack of independence has been so inherent and
endemic that Bangladesh Constitution needed the 13th Amendment in
order to introduce provisions for a Caretaker Government. Besides the
provision for the Caretaker Government during the general elections
there is also need for an independent and neutral body having its
credibility on its own right beyond any reproach. Because when an
election is held for the local government or a by-election is conducted for
parliament Election Commission must be able to conduct election with
such credibility as is needed for the general election. The Commission
must have its own fund and the budget and it should have its own staffs
and personnel recruited by the Commission itself. Though it is not
provided in the Constitution, it is a part of a convention as practised in
Other countries that it should submit its report to parliament on the
completion of each election and a committee will deal with it. For recent
reforms Undertaken by the military backed caretaker government with
regard to the Election Commission refer to chapter 23 of this book and
also pages 515-516 of this book.

3. Public Service Commission and Civil Service

Parliament has been kept out of its arena in respect of services
though Constitution has ordained that the parliament should make law
regulating the appointment and the condition of services of persons in the
service of Republic. In absence of any Act of parliament the terms and
conditions of service are governed by the Rules made by President. These
Rules are so complex and at times inconsistent and contradictory that
there remains bundle of controversies about the seniority, promotion,
absorption, lateral entry, preparation of gradation list and with regard to
their discipline and enquiry questions regarding equal opportunity are
vital for maintaining a reasonably satisfied service cadre. Often such
fundamental rights are violated without any effective remedy available to
Constitution, Constitutional Law and Politics 519

them. There has also been reduction of power of the Public Service
Commission by regulation made by the President under Article 140(2).
This is an area from where the parliament has almost abdicated its power
though it is the parliament which i empowered to make and to regulate
the service condition and to decide on the powers of the Public Service
Commission. The Public Service Commissions recommendations arc
often not complied with by the Ministry of Establishment. These facts are
contained in the report which is placed befoLe the parliament but
unfortunately the parliament does not provide as tc how these reports are
to be dealt with and the follow-up measures to be undertaken nor does it
identify the committee which should deal with these reports) In almost
all democratic countries the reports of the Public Service Commission is
dealt with a committee of Parliament.

4. Problems of Bureaucracy and Public Administration

The Bangladesh bureaucracy is well known as hot-bed of corruption.
Corruption in the administration of Bangladesh is worse than anywhere
in the world. interestingly the politicians blame the bureaucrats for
corruption and inefficiency in the public administration. On the other
hand, bureaucrats blame politicians for corruption and inefficiency. Who
are then really responsible? It is the politicians who are responsible for
the problems in bureaucracy. Bureaucracy is like a cage of pet and
trained animals to obey the orders of their masters. To keep these animals
always loyal and obedient masters must not forget to apply some
controlling devices. Our master-like politicians have not applied and
sometimes have applied improperly those controlling devices to keep
bureaucrats within their hounds. There are some universally recognised
methods of ensuring accountability of bureaucrats. But Bangladesh
administrative system lacks those methods from very inception. Of
course, it is the fact that the war of independence that created Bangladesh
was actively participated by Bangali civil and military personnel and the
result was that the new Bangladesh government inherited a politicised
administration. Also was the fact that the leaders of the new horn country
had little administrative experience. During the Pakistan regime the
process of creating an effective provincial government was extremely

Islam. M. Amir. tII. Bar-at-law. The Evolution of Pwlion,e,uart /)e,nocroci and i/re
Constitution of/3wn,'/odes/i. (A papacr read in 1997 in CPA senuiier).
520 Constitutionalism in Bangladesh

slow. Almost every senior administrative post in East Pakistan was

occupied by a non-Bengali Muslim. East l'akistanies were totally
excluded from decision-making and getting share of the development
resources. I It was also the fact that in undivided Pakistan democracy was
practically eclipsed after 1958 and bureaucracy played a highly political
role till 197 1 - And as a result the British tradition of an impartial and
non-partisan civil service had been destroyed and this trend had a bearing
impact over the Benglali members of the earstwhile [21st Pakistan Civil
Service who later came to paddle the new I3an g ladeshi administration.
Despite all these factors how can it be supported that politicisation would
continue even after the start of constitutionalism in Bangladesh!
Controlling devices would not at all be set to work'?. Law would be made
jList to vitiate the constitutional independence of and mutilate important
organs like CAG. Election Commission, PSC etc? Then During 15 years
of military rule the bureaucracy was politicised and militerised just to
satisfy the needs of military ruler. During both Zia and Ershad regime top
civil and military bureaucrats held important positions and were invol
in both critical policy formulation and policy implementation; they had
also direct access to the President and could sometimes even override the
decisions of their ministers by invoking the President's support. The rules
of' business 215 they existed in Bangladesh allowed a matter to be retèrred
to the President in a case of difference of opinion between the minister
and his departmental secretary. There were many instances when both
Zia and Ershad used to, in such cases, prefered the opinion of the
departmental secretaries over those of the ministers. Obviously under
such a circumstances the civil servants developed a superiority complex
over their ministers. Indeed in Bangladesh from its very inception neither
a vigilant parliament nor a responsible executive was in existence to
restrain the political ambitions of the civil servants. 2 Thus as an
institution of democrac y the bureaucracy have lost all its possibilities
and when the coLrntry was freed from the clutches of military rule in
1990, the bureaucracy was discovered as a problem— a seriously infected
i ristitution. Now the bureaucracy is almost an unruly institution; it is in a
position that bureaucrats now easily defy their master's (Minister's)

K ciiaiiek, Siii cv A, Patron-Client Po/aics and l3nsint'ss I,, Panglcidesli. it )tiaka

t ii'. 54
- ( 'InntdIiui' , I )ilara. Thin', I'. 220
Constitution. Constitutional Law and Politics 521

decisions and orders. Now the public servants dare act like trade unions
or CI3A. Such behaviour of public servants has been entrenched with th
gradual politicisation and pat roll sat ion of' the government functioneries.
All governments of post-independence period both civil and military are
guilty of usin g the civil and military servants for their narrow political
ends. It is also a ]bctor that most of the ministers since independence
amassed huge wealth by corruption. sometimes they engage themselves
in corruption and other misdeeds in collaboration with top-rankuig
bureaucrats. These are the Ibctors which have played the key-role in
turning bureaucrac y into a hot-bed of corruption: these have degraded the
morale of the bureaucrats: destro yed the cohesion--tfte administrative
chain of' functioning within the institution: also destroye'd bureaucrats'
sense of respect towards ministers which is indespensible to the smooth
functioning of state adriiinstralion. Thus over the years the cut-sc oh
partisanship has gradually eaten away the whole notion Of i inpart al ty
and oh)ectivity on which our administrative edifice is based. It was
observed 1w the Bangladesh Aid Consultative group in 1994 at Paris that
Bangladesh Public administration has not been able to deliver oil
of, the most important turgets the government has set for it. Decesive
action is now reguired at the highest level of government to begin to
break the bottleneck.' The problem which beset our public
administration today are (1) corruption by bureaucrats; (ii) inadequate
accountability (iii) inefficiency : (iv) centralisation of decision-making
l)ov' and bureaucrats master-like interference in it; (v) politicisation of'
bureaucracy and administration etc. For a government to be responsible
to the people it essentiall y needs a responsible bureaucracy. To remove
the dilficLrlties and to institutionalise this bureaucracy and to make public
administration accountable following measures should he taken
immediately
(i) The political will of the government must he demonstrated in a
way so that the bureaucrats cannot dare defy Minister's orders.
(ii) Standing committees oil should be allowed to work
independently with full swing and support so that the bureaucrats at
every ministry come under the direct scrutiny of parliament. It will only

Quoted in Suniinarv Procecil ings on Workshop on 'h/,n,n,siraiive 1? eIbi n,.r in

Ikoigladesh. 'I > . 9. ( Puht ishcd by CA(' in 1994).
522 Constitutionalism in Bangladesh

be then that members of the civil service will begin to be aware fo

parliaments scrutiny. This will also ensure the communication between
political leadership and bureaucracy.
(iii) The constitutional independence and autonomy for the CAG
must be ensured so that it can independently work in the way to make
bureaucrats accountable in respect of financial matter and to monitor
their financial responsibilities.
(iv) A department of Ombudsman should immediately be created
which will work as an all-time watchdog against maladministration, red-
tapism and inefficiency in the bureaucracy.
(v) Deirctly elected local governments should be established
according to Articles 59 and 60 of the Constitution with proper powers
and independence and the respcective local administration with its
officials and staff must he vested in the direct control of the local
governments. This will, on the one hand, decentralise administrative
power, functions and responsibilities and as a result, channel-based
corruption, conspiracy and red-tapism by the bureaucracy would be
reduced and on the other hand. it will relieve MPs much of the burden of
local responsibilities and they will, therefore, be able to concentrate more
in committee functioning whereby the central bureaucracy will come
under the direct control of parliament.
(vi) Unconstitutional laws dealing with the functions and formation
Of constitutional bodies like CAG, PSC, Local Government, Election
Commission etc. must he replaced by democratic laws allowing them to
work independently in furtherance of better administrative
accountability.
(vii) The larger the government, the wider is its reach. The wider the
reach of the executive. more the likelihood of public harassment; more
the likelihood of bureaucratic corruption. Government has, therefore, to
be shrunk. In the present context where multi-national foreign investment
is involved in the exploration of oil and gas, and the generation of power,
there cannot be any justification for restricting our own private sector
from importing and distributing various products like petroleum etc.
Monopolies such as BPC (Ban(ladesh Petroleum Corporation) which
bring no public benefit should he abolished. There are many other
instances where 'the state must be rolled hack. Reduction in state
intervention should he the prime principle of reform. Wherever possible
Constitution. Constitutional Law and Politics 523

government executive should be branched out to agencies and the private

sector be allowed to participate in creating a competitive atmosphere.]
(viii) The functioning of the PAC must be strengthened and it should
be chaired by an expert opposition MP particularly one who had been
previously a Finance Minister. Proper functioning of the PAC will ensure
the financial responsibility of bureaucrats in every ministry.
(ix) Reports of the PSC must be dealt with a standing committee in
parliament and the compliance of the commissions report must he
ensured through the scrutiny of the committee system.
(x) To control delegated law making by the bureaucrats a standing
committee should be set up and a statutory instrument Act should be
made.
(xi) Ordinance-making power should be reduced so that bureaucrats
connot get any ample power in law-making avoiding parliament.
(xii) Democracy within the party must be gradually strengthened so
that leadership from grassroots level can develop and leaders can
gradually gather knowledge over administrative accountability and that
they should not depend oil
(xiii) There must be specific rules for promotion, transfer and
retirement of officals and promotion must be based oil and
efficiency. This will help bring efficiency and sincerity in the functioning
of the administration. A good government means a good civil service. But
one cannot have a good civil service without good service conditions,
morale and rewards for performance. These factors need to be
incorporated into any civil service reform. At the same time there must be
provisions for actions to be taken when officials do not attain the
standards set for them. To improve professional efficiency government
officials should be given proper training particularly intensive and need
based training.
(xiv) Lower judiciary should be separated from the executive. This
will relieve the bureaucrats of exercising judicial power oil one hand,
and on the other people will get rid of the problem of corruption in
Magistrates courts where justice for the poor people is almost captive at
the corrupt hand of magistrates. Separation will bring accountability in
thejudicial sector.

Help taken from Making Parliament E/jeciive' A report by (K. Siddiqui and others.
(Published by CAC in 1994).
524 Constitutionalism ill E3aiieladesli

(xv) One of the most fundamental reasons for unruly situation of the
bureaucracy and administration is pout icisat ion by governments.
Politicisation kills the instinct of a person to work independently: it
destroys his courage to stand for justice: it turns him into a tool to serve
the party: it leads him to subordinate the interest of the state and people
to those of the party and part y men; it gives him opportunity to adopt
organsied corruption and conspiracy. So long this politicisation will
continue the government will never he able to build up a loyal
administraion. If bureucrac y and administration is to institutionalise,
politicisation must be stopped and to this end PSC and oilier recruiting
agencies should he given full independence in the matters of recruitment
of officers.
(xvi) Corruption is the main problem in Bangladesh administration
for implementation of any development pmgraiiinie. Corruption has
engrained in our society. But this evil cannot he wipped out overnight.
No leader. howsoever, powerful or charismatic lie may be, will be able to
vip corruption out overnight. Onl y it can be wipped out gradLially
through the process of institutionalisation of controlling institutions and
it needs a dedicated leader for institutionalisation of institutions which
controls the administration.

5. Local INvernment
Local Government is one of the most vital institutions of democracy.
Modern state administration is almost unthinkable without devolution of
power to the local governments. Due to increase of popLilation as well as
to huge expansion of governmental activities certain matters of policy
and administration concerning national and international interests are
reserved for central administration and the rest wide range of
governmental functions are vested in local authorities In modern state
administration the bulk of public services are actually provided by local
authorities rather than by central departments. It may even he said that at
least from day to day, a citizen would seem rather more likely to be
dirctly affected by actions of his local authority, than in respect of
activities of central government.' Local Governments are elected with a
view to ensuring governance from the grass-roots level and participation
of the local people in the development and formulation of solution of

Ioos. II.. (Jw - ucr.c jj,,th,jsi,,live /mr. Sc cnth cc], (London : Ruttcrorths. 1989).
i 23
Constitution. Constitutional Law and Politics 525

thier own problems and needs. In developed countries like USA. UK

there is ail network of local governments the history of which
dates hack many centuries. Local governnients in democratic countries
ire given the responsibilities for the welfare ot their conilniuniticS ii
providing for policing, highways and public utilities slLch as gas, water
and electricity. The systenl of local govcrnillent helps different ways
bring transparency and efficiency within the state administration. First, it
helps to solve local problems locally and relieves the central government
much of its responsibility to deal with triffle and local matters. It.
therefore, allows the ceiflral government to employ more methodic and
prodigious effort to solve national and international problems. Second, it
relieves MPs much of their burden of local responsibilities which people
usually expects from MPs. It, therefore, allows them to concentrate more
in national legislation, committee functioning and controlling the central
government. Third, it decentralises adminstrative functions,
responsibilities and powers and as a result, channel-based corruption and
red-tapisni by the bureaucracy become impossible. Fourth, as it allows
MPs to employ more times in committee functioning the central
bureaucracy will come under the direct control of parliament. Fifth, it
allows the government to reduce its size. Sixth, if local governments are
institutionalised, they will help develop leadership from the grassroots
level giving gradually a strong base in democracy.
Our constitution-makers have provided for accountability of both the
central government and bureaucracy which is to be ensured through the
proper functioning of parliament and its committee system. Similarly
with regard to local administraion, the express intention of the
Constitution makers was also to make them accountable to the elected
functioneries. Provisions were made in Articles 59 and 60 of the
Constitution to devolve the responsibility for both development activities
and administration into the hands of the elected representatives of the
local government bodies. The Constitution makers envisaged the newly
independent Republic to be a democratic order in vvllicll. effective
participation by the people through their elected representatives in
administration at all levels shall be ensured (Article II). Accordingly
Article 59 provides that local government of' every administrative unit
'shall he entrusted to bodies COilipOSCd of'persons elected in accordance
with the law' and they will perlorili functions relatin g to
a. administration and work of puN ic tI liccr
Ii. the maintenance of public order /
526 Constitutionalism in Bangladesh

c. the preparation and implementation of plans relating 10 public

services and economic development.
Article 60 also empowers the local government to exercise 'the power
to impose taxes for local purposes', to prepare their budgets and to
maintain funds. But no government so far has taken proper initiative to
fulfil the aspirations expressed ill the Constitution with regard to
institutionalisation of local government. Elected local government should
be autonomous and independent of the executive and the local
administration should be under the control, of the local government. But
in Bangladesh every government has kept colonial mentality in respect of
nourishing this institution. Local Government was first introduced in this
sub-continent in 1793. 'All reforms in local gcvernment since then seem
to have taken place ma i nly for devising all mechanism to
keep the centre's control over the peripheries and defuse political
agitation and to create support-base for the, centre at the grassroots level
under a dependency syndrome) Unless there is devolution of power upon
the local bodies the people would not be able to become efficient
participant in advising their own officers through elected representatives.
Many honest, dedicated and efficient people in the locality do not contest
local bodies election mainly because of thinking that after being elected
they will neither be given autonomy nor proper powers and other
financial support to implement local development projects; on the other
hand, at the expiration of duration they will have to take blame from the
voters for not doing local development activities. As a result, money
power gets an ample opportunity to play the real tricks in the local bodis'
election; and the government has its political lure to influence election
process with a view to creating a support-base from top to bottom. All
these have gradually destroyed local government institutions in the
country. After a long term of military rule the second democratic
government is now rLlnning the administration but so far no sign oh'
honest attempt to institutionalise these local bodies is sighted. Following
initiatives should be taken to institutionalise local government:
(i) In accordance with the provisions of Articles 11. 59 and 60 of the
Constitution local government institutions should he set up for ensuring
people's participation in the development of the country and there should
be three tiers of local government at Thana. Union and Zilla levels and all
the tiers should he composed of elected representatives of the people by
direct election.

t''cc;/ ()1'rnJnc'n1. L, Paper b )r. Sulehuddin Ahmed

Constitution. Constitutional Law and Politics 527

(ii) Every tier of local government should be autonomous and

maximum devolution of power to be made to the local government.
(iii) Local government institutions should be made free from
government interference except audit and inspection of funds provided
by the government.
(iv) In accordance with the provisions in Article 59(I) of the
Constitution the local administration and officials must be vested in the
direct control of local government and not under the control of the central
government as present legal provision provide, because a centralised
administration tends by nature to be more bureaucratic.
(v) Remuneration, authority and responsibility of the chairman and
members of the local government institutions should be enhanced to give
them incentive to work sincerely and with dedication.
(vi) There should be clear demarcation of subjects of the central and
local governments to avoid overlapping of functions. Also to avoid
conflicts in the relationship between the MPs and chairmen of local
bodies the duties and functions of each should be clearly defined.
(vii) The term of office of chairman of local bodies should be
reduced to two years instead of five years to make the office of chairman
less attractive to monied candidates, but more attractive to dedicated
persons.
(viii) Local governments should be so designed that MP can also
become the Ex-officio adviser of the Thana and District Council. This
will keep the linkage between the local government and the MP and help
MP to remain in touch with the development work in his constituency.
This will also help develop relation between the parliament and the local
governments.
6. Problems of Ordinance-making
Please see chapter XIV

7. Problems of Unconstitutional Laws and the

Control over Delegated Laws.
The Comptroller and Auditor-General, Election Commission. Public
Service Commission, Local Government etc. are constitutionally created
essential institutions of democracy . Institutionalisation of democracy
depends on the full independence and proper functioning of these
institutions. The Constitution has given these lnstitutons full
S28 Constitutional sill in Bangladesh

independence but Statutory laws which deal with their composition and
functions are vitiating all aspirations of the Constitution. In most cases
these laws have been made violating the provisions of the constutiton.
Interesting to note that all these unconstitLitional laws were made by
Muj lb Government in the form of Orders' particularly when Dr. Kamal
liossain was Law Minister and all SLiccessive governments just took and
is now taking the benefits from those unconstitutional laws keeping
virtuall y democracy in peril. To give democracy a positive turn these
unconstitutional laws should immediately he repealed and democratic
laws in accordance with the provisions of the Constitution should be
made.
Though no research statistics is available but it is assumed that tile
largest portion of laws in tile country is covered by delegated legislation.
As mentioned earlier 2 our country is run almost by S. R. Os and these are
often contradictor y and they sometimes violate even constitutional
provisions. This is the area where tile executive is abusing its power
a I nlost rampantly. A statutory instrument Act should, therefore,
immediatel y he niade and a standing committee should be established to
scrutinise these delegated laws before they are applied.

8. Problems of Political Parties

Political parties are backbone of democracy. Without democracy
within the party-unit it is suite impossible to expect democracy at the
governmental level. However, in Bangladesh as mentioned earlier1
political parties are mostly fragile and fragmented. The problems of
political parties are as follows:
i ) There are more than 100 political parties in Bangladesh but very
few of them has definite ideology or programmes to be followed by
supporters and future generation. Though one or two parties have

From 10th April. 1971 to 10111 .ianuarv. 1972 (Return ot Sheik Mulih) 9 Orders were
nidc iv Vice President tinder the atithotiv or the Proclamation of Independence.
• ioni I I th j autiar . 972 to 16th December. 1972 (enioretnent da y of the Constitution
of Ball g ladcshl 151 Orders '. crc made [, the l'resjdeni under the uuthorilN of the
Proclamation of Independence read with the Provisional Constitution of It:tng!adesh
I )-der. 1972.I :l on l I 6th l)ccemher. 1972 to 7th April. 1973 (First sittin g of the lirsI
I'irIiatiteutt 13 ( )nkis \ere niade hN the President under the authorit y of i i of the
I 011011 Sh c(ILI]c fu the Constitution.
See Chapter X I I
Chapter VIII
Constitution, Constitutional Law and Politics 529

ideologies and programmes, the leaders often defy them for their selfish
end.
(ii) Almost all political parties are based around individuals and most
of them do not have any grassroots organisation or sufficient support to
claim public representation. Mostly political parties are characterised by
the politics of conspiracy, self-interest, greed and power-expectation.
They are personality-oriented with followers clustering around a party-
leaders who in turns becomes dictatorial.
(iii) The nature and composition of major parties reveal a
disappointing state of affairs. Each major party is headed by person who
is omnipotent in the management of the party-including the formation of
central and executive committees. The constitution of the most of the
parties are absolutely monolithic in nature.
The party chairman can make and dissolve any committee from the
highest to the lowest level. The party structure and committees are filled
by nomination not by election. Party is managed in such a dictatorial way
that members' free-will does not bear any credit in party-meetings; often
members are not given even right to express their opinion in party-
meetings; what the party leader says or does becomes the ideology of the
party.
(iv) Political parties in Bangladesh are considered as safe abode for
criminals, terrorists and extortionists, for these type of people are always
given shelter in parties. Moneyd people devoid of any leadership quality
or connection with the people are given position in the party. In election
time people who amassed wealth through whatever means are given
preference to be candidates to these who may not he so wealthy but
otherwise dedicated and committed having checkered political career.
People having long sacrifices, dedication and commandment with
integrity are overtaken by new rich 'oadcrs. And this is being done b y the
party head who have little knowledge about democratic institutions and
who have not reached that position through democratic process rather
than through back door.
(v) Another great impediment to the growth of democracy is the
hereditary or dynastic element in the party leadership. Khaleda Zia
became leader because she is the wife of late President Zia who founded
the BNP and Sheikh Hasina because of her father who founded
Bangladesh. The leaders of these two political parties are permanently
settled in their respective positions cancelling all the possibilities of
530 Constitutionalism in Bangladesh

emergence of any new leadership in their respective parties. This anti-

democratic dynastic feature in the party leadership has been the greatest
impediment to the development of constitutionalism in Bangladesh.
Because both Khaleda Zia and Sheikh Hasina have created a permanent
block to the democratic growth of leadership in the party leaving no
scope for the emergenc of a promising and dedicated leadership to lead
the party and nation; both having no sufficient institutional educational
background or proper knowledge over the working of various institutions
of democracy are doing the worst to destroy democracy; they are greeting
moneyed people, extortionists and criminals to their parties; they are
expressly instigating and provoking the destructive politics of students
and other organisations like CBA, trade union, civil servants etc.; they
are encouraging retired as well as acting bureaucrats both civil and
military to come into politics; they are blatantly using government
servants for their narrow political goal.
The basic reason behind almost all the above mentioned problems in
political parties is the illiterate and politically unconscious people behind
the scene who are supplying the real force into the body polity of
Bangladesh. They do not have any knowledge over democracy; neither
have they any knowledge how to manage a party; they only see a person
considering his/her past dynastic history disregarding other criteria's.
Khaleda Zia, whatever be her educational or other qualification, is
getting support and sympathy from the people only for the reason that she
is the widow of an assassinated President, a former military charismatic
leader and on the belief that being the widow of Zia she would certainly
keep alive Zia's (her husband's) glory and aspirations. Same is the case of
Sheikh Hasina. Both Mujib and Zia were charismatic able to create a
large and strong support-base in the country and on the basis of this
support base people are giving their blind support to these ladies
whatever be their experience, education or sincerity in politics. Same has
been the case of the Congress party in India which was led by the Nehru-
Gandhi family for most of India's 50 years since independence in 1947.
But being detached from Gandhi family and for corruption scandal the
Congress recently has faced decay. Lastly to stop decay and desertion
and particularly to win in the incoming election of 1998 Sonia, the
widow of Rajib Gandhi inspite of her repeated refusal to come into
politics, was strongly urged to lead the Congress or to at least campaign
for them. When Sonia gave up her fiercely guarded privacy to active
.campaign for the Congress, it was seen that the Congress got vigorated;
Constitution, Constitutional Law and Politics 531

workers were particularly rejuvenated because they felt that she may
ignite the embers of the dynasty glory once again; huge supporters
gathered to greet Sonia at her campaign. But these large numbers of
people who are greeting this anti-democratic dynastic element into
politics keep hardly any knowledge of its possible dangers. The reason
behind such a trend among people is psycho-historical. But illiterate
people should not be blamed for this. It is their illiteracy and political
unconsciousness which are responsible in this regard. To get rid of this
problem what we need is to make our people educated and politically
conscious. And to do that here again comes the question of dedicated
leadership, for only a far-sighted leader can, with proper guidelines and
policy-implementation, make the people gradually educated and
politically conscious. But this is not possible overnight; it is a matter of
considerable time and progress. But what is urgently needed is to
introduce democratic culture in various institutions of democracy in
furtherance of political stability which will gradually lead to economic
development. It is not true in every sense that if Khaleda Zia or Sheikh
Hasina resigns from party leadership while she is in power, the party will
face quick decay; it is largely amatter of consensus among party leaders
and particularly the sincerity of Hasina or Khaleda and it is also a matter
of political tradition; if a tradition is once made by giving people,
workers and supporters of the party information and knowledge over both
negative and positive aspect of dynastic element in the party through
mass-media people will realise and the tradition will gradually develop
into a firm institution and democracy will get environment to flourish.
And in this respect South African President Nelson Mandela has made
the best instance for the sake of democracy by resigning from his party
leadership. Our leaders should come forward to follow this example.
To institutionalise politcal parties for the sake of democracy in the
country the following steps should be taken by the leaders:
(i) Hereditary nature of leadership should be abolished and the party
constitution should be amended to allow change in the leadership after
each specified term.
(ii) The party structure and committees should be filled only by
election and this will encourage as well as develop leadership from grass-
roots level.
(iii) The party leader should not take any decision without the
process of consultaion or discussion.
532 Constitutionalism in Bangladesh

(iv) The post of the party president and the leader of the
parliamentary party should not be held by the same person. Ministers
must be barred from holding any party office. This will ensure the
separate entity of the party as an institution of democracy on the one
hand, and on the other hand, the party will be in a position to exercise a
sort of control over the government or the parliamentary party so that
they do not deviate from their party mandate or manifesto.
(v) Regular elections should be held both at national and local levels.
This will, on the one hand, ensure a legal and political process of
elimination and recognition of leaders and parties in nation-building
activities ; and oil other hand, ii. will help diminish the unnecessary
number of political parties which were created during the long time of
political vacuum.

9. Problems of Press and Media

Transperency and openness in government transaction is a necessary
part of effective democracy. These two necessary elements of
government are fulfiled by press and media. 'A popular government
Without popular information or means of acquiring it, is but a prologue to
a farce or a tragedy or perhaps both'. So there should be unhindered flow
of information of government transactions. Though from 1991 the press
is more or less free some important laws, rules and regulations which
regulate press arid media are still very much restrictive. Since
independence both radio and TV have been using as mouth-piece of the
government. This is why there appears to he a fairly large audience for
non-Bangladeshi radio-soures. including All India Radio, BBC and VOA.
Both BNP and the ruling AL had avowd commitment to the people that
they would give automy to the state-controlled radio and TV. But nothing
positive has yet been done. A commission to give report on Radio and
TV autonomy was however, set up in September 1996 at the directive of
Prime Minister Sheikh Hasina in line with her party's much propagated
election pledge and repeated commitment to people to give autonomy to
Radio and TV. Report was submitted oil 1997. But the report is
being now kept in cold storage. For the transperency within the
governmental fabrics Radio and TV should immediatly be given
autonomy. Operation of private TV channels should be allowed. All
restrictive laws concerning press and media should be replaced by
democratic laws and both the press and media should he allowed to be
self-regulated by themselves through a code of ethical practice.
Constitution. Constitutional Law and Politics 533

10. The Leadership Problem

The problem of democracy in Bangladesh as discussed above are
politico-legal in nature. From socio-economic point of view Bangladesh
is an underdeveloped country. There is a plethora of problems like over-
population and its rapid growth, illeteracy, poverty, disease, malnutrition,
unemployment etc. But almost all these problems have been created by
our leaders. Oil other hand. there are huge possibilities and factors in
favour of industrialisation and economic growth in the country. Many
third world countries started their journey towards constitutionalism and
economic development with fragile institutions as was in the case of
Bangladesh. But these countries like Korea, Taiwan, Thailand, Indonesia.
Malaysia have been able to make success in a comparatively shorter
period. But Bangladesh still lags behind. The basic reason behind such a
position is leadership crisis which this nation has been sLiffering since its
independence. Despite the existence of all ample possibilities for both
political and economic development we are still struggling because we
could not get an honest and far-sighted leader who call the nation
with devoted spirit into a proper direction. A proper policy guidelines
and sincere effort of a patriotic leader can override all the problems like
illeteracy, over-population, unemployment etc. as has been done in
China, Malaysia, Indonesia etc. The Malaysian Prime Minister Mahathir
is a classic example of a prudent and intelligent leader, He transformed
his country from rudimentary stage of this 'tiger status. Malaysia was
beset with many problems earlier. South Korea's economy was no better
than ours in the 60s. Its per capita income was lower than that of
Bangladesh in 1953. But by virtue of solid leadership skill, it has
surpassed us long hack. South Korea achieved tremendous development
in General Chun du Huan's and Rae Tn's regime during 1980-93. Even
then, Mr. Chun was not forgiven for his overwhelming corruption which
outweighed his achievement of national economic success. He was
sentenced to death by the court. This is a good lesson for US in
Bangladesh where public leaders work for their own gain and go scot-
free even after corruption) Indonesia was economically similar to
Bangladesh in the 60s. in 1960 the percentage of people living below the
proverty line was 60% in both the countries. At present it is 18% in
Indonesia and 50% in Bangladesh. General Suharto got an extremely
improvishcd country but through sincere and unflinching leadership he

Ahmed . Kazi Asif, Leadership Crisis in Bangladesh, Obsorver' 14th Sept. 1997
534 Constitutionalism in Bangladesh

steered its economy towards a better horizon. Now Indonesia's per capita
income is $ 950. General Suharto has proved that not only democracy but
good autocracy can also usher in economic development in a country.
The much talked-about country Mayanmar which has been under the
boot of military junta for a long time and where democracy is still a
daydream of the masses, possesses a better economic scenario than ours.
At least I lakh (10,0000) tourists visit Burma every year whereas even
one thousand tourists do not come to Bangladesh in a year. During 1990-
95 foreign investment flowing to Mayanrnar amounted to 600 million
dollars, a figure which is twelve times more than flow into Bangladesh.
The age of our independence is 32 years which is a pretty long time.
Unfortunately, we still talk about food, cloths, shelter—three basic needs
of the people. This 32 year period was enough for any civilised and hard
working nation to change its luck and rise to glory. Ironically we failed
even to meet our minimum needs over this long period. Our people are no
less hard working than those of industrialised nations. They do not know
the way to do it. The leaders in our country only 'aggravate the crisis of
democracy by trying to shape events to suit their own exigency while
disregarding the urgent need for economic growth. Their commitments
were limited to speeches and the ritual of annual plans are drawn up and
implemented by bureaucracy ... No political effort was made to inspire
the people towards sacrifice and growth and no serious national plan was
envisaged to deal with these problems. The leaders remained too busy
with small, peripheral, petty prersonal politcs and ignored the
fundamental issues of development and democracy."
It is the fact that democracy cannot be established overnight. Those
who have firmly established democracy have developed their traditions
of social and political justice over the period of many ages. But a
necessary noticeable condition in their cases was that tradition once
practised was uninterruptedly followed and nourished upto its full
institutionalisation. Constitutionalism is lagrely a matter of gradual
development and for that development a favourable atmosphere is a must.
During 25 years of Pakistan politics AL, the main political party in East
Pakistan did not get any atmosphere to learn the devices of and get proper
training over democracy; there was no slow and steady growth of
political institutions such as had occured in Eurupe and America. The
political ideas of new born country Pakistan freed from the bondage of

Ahmed, Moudud. Democracy and the challenge oJDevelopment. ibid. P. 369

Constitution, Constitutional Law and Politics 535

colonialism was based largely on what they had learnt from their colonial
masters. This is why our leaders and representatives are not expert and
institutions are very much fragile. But taking this logic as a reason how
long we will wait for getting learning? Who will come to give our leaders
learning over political game? No messenger will come form above to
teach our leaders. This is the proper time for at least introducing positive
parliamentary cultures and traditions towards constitutionalism.
Successful democracy depends upon an infromed public opinion capable
of weighing men and issues and deciding in favour of a policy that can be
made to work; it depends on the insistence by public opinion that the
holders of power conform to the spirit of the Constitution.
'Representative governments are of little value and may be a mere
instrument of tyranny and intrigue if the people are not public spirited,
politically conscious and eternally vigilant on the activities of their
representatives."' But our public opinion is very weak since the
electorate here is predominantly illeterate and it will incvitabley take
time for public opinion to grow and to be rooted in the consciousness of
the people. To lead public opinion from this rudimentary stage to its full
bloom undoubtedly it is the question of effective leadership which will
take all necessary steps. So we should not make any delay at least in
introducing various democratic cultures like making parliament a focul
point of all political activities; making policy statement first in
parliament; institutionalise a parliamentary opposition; starting
committee functioning fruitfully, giving autonomy to media etc. so that
workers, supporters of parties and lastly the people can get correct ideas
over the functioning of institutions of democracy. If these positive
traditions are once set to work with tolerance and dedication all other
problems will gradually be eroded.
After 15 years of military rule democratisation started since 1991.
However, still politicisation in the administration reigns; both Khaleda
Zia and Sheikh Hasina have adopted the policy of creating a support-base
within the bureaucracy and administration. Politicisation is being done by
Khaleda Zia even in the highest seat of the judiciary i.e. the Supreme
Court. While Sheikh Hasina was in oposition she actively instigated
bureaucrats' stand against government and her party blatantly used the
government servants for 1st own political goal towards the fag end of
BNP rule. l-Iasina has later, coming to power, rewarded those who took

1 Ralinian. Mosibor. Friends noi Foes: .1 Political SurvevofPakistan. (Dhaka: 14

Hatkhola Road. 1968). P. III
536 Constitutionalism in Bangladesh

active part in that process. Still situation is being created by instigating

staffs of democratice institutions so that the head of that insitution which
is a constitutional body resigns willingly making way for the ruling party
to set up its politically loyal person to head the institution. Also inroads
into administration are being made almost in a competetive way by
adopting the policy of politicisation and'personalisation' in the name of
Bangahandhu at all possible levels of administration. All these are
democracy destroying policy which were adopted by previous military
dictator particularly Ershad. When we see that our democratic leaders are
adoping the same policy almost in a cornpetctive way, do we see any sign
of political development? If such a trend in politics continues.
bureaucracy will be more in a position to defy the political will of the
government and if the bureaucracy cannot he made loyal and obedient to
civil government, it will be impossible for the government to implement
development programmes. Khaleda Zia and Sheikh I lasina—these two
ladies are struggling, as their activities show, not for the cause of
democracy; rather for finding them in power any how. Both are showing
their narrow outlook and are adopting the policy of provoking each other.
They have also stopped the way to emerge any viable leadership in
democratic way. Democracy may be captive at the hand of these two
ladies if they do not come out from their narrow outlook for the cause of
democracy. The fact is that these two ladies keep hardly any substantive
and vigilant knowledge over the importance and functioning of various
institutions of democracy; they do not also seem ready with sincerity to
get proper learning from party men, press and public opinion. Also is the
fact that they cannot be removed from politics; they will try to lead
politics of Bangladesh so long they wish. To be borne in mind that more
they will he intolerant against each other, more they will see the
emergence of a third power; more people will be dismayed and more they
will bring possibilities of unnecessary chaos and instability in politics
and so long there will be political instability, there will be no scope for
economic development. What is urgently needed now is to play effective
role by some of our MPs who are really sincere, educated and devoted to
the institutionalisation of parliamentary democracy; they should, from
their respective parties, whenever and in whatever way possible,
consistently create a sort of genuine pressure so that these two ladies
cannot take any arbitrary or dictatorial actions to destroy democracy; they
should be made to act on democratic line.
Constitution, Constitutional Law and Politics 537

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Garner, J. W. Political Science and Government, (Calcutta: The World Press Private
Lid, 1935)
Gledhill, A llan. Pakistan---The Development of its Laws and Constitution, (London:
Stevens & Sons Ltd. 1957)
(iettle. R. G, Political Science, (Calcutta: The World Press Private Lid, 1950)
Graham. 1-lassall & Cheryl Sunders, The Peoples' Representatives: Electoral System
in South Asia-Pacific Region, (Australia: Allen & tinwin Pty. Ltd. 1997)
Hakim. Muhammad, A . Bangladesh: The Sahahuddin Iterregnum, (Dhaka: U Pt.,
1993)
I lamid. Dr. Kazi Aktar. fiwnan Rights, Self-I)eiermnination and the Right to
Resistance: The Case Study of Hrnvaii, (l)hakw. Bhuyan Academy. 1994)
I laque. A bul Fazal. Bangladesher Shashanbabastha 0' Rajnit.v (Government and
Politics in Bangladesh). 4th ed. (Dhaka: Sahitha Kosh. 1992)
1 larvcy and Bather. The British Constitution and Politics. 5th ed. (London:
Macmillan. 1990)
l-lasan. A.F.Aritl The Judiciary: Bulwark Against illegal Detention, (Dhaka:
1-lasanuzzaman, Search for a New Dimension, (Dhaka: Pallab Publishers. 1992)
Hasanuzzarnan. Awamni League and BAKS4L. 1972 - 75, (Dhaka: Bangladesh
Publication. 1980. (in Bengali)
llidayatullah. M. l)emocracv in India and Judicial Process, (New Delhi: Asia
Publishing House. 1965)
Ilodson, II. V . 71ie Great Divide: Britain-India-Pakistan, (Karachi: Oxtbrd
University Press. 1985)
Ilossain. Sara and Others. Public interest Litigation in South Asia, (Dhaka: UPL.
1997)
Hossain. Moidul. The Main Stream 1971, (iii Bengali). 2nd ed. (Dhaka: UPL, 1995)
liuda. Shahnaj. human Rights and Emergency Situations, (Dhaka University
Studies. Part-F. Vol-Ill)
Hussain. Amjad. The Politics and Political Parties in Bangladesh, (Dhaka: Parua,
1996) (in Bengali)
540 Bibliographical Index

Islam. Malimudul. Constitutional Law of llanglaclesh. (Dhaka: Bangladesh Institute

of I av and International Al1'airs. 1995)
Islam, Major Raliqul_ Ali/itari' Rifle and ProblemsoJ De,nocracj' in Bangladesh.
Dhaka: U > 1.. 1989) (in Bengali)
Islam. M. Aniii'-1,il. The Evolution of Parliamentary Democracy and the Constitution
in Bangladesh. (a paper read in CPA seminer in 1997)
Islam. Sirazul. I3ang1adesher itihasli. (History of Bangladesh). ( Dhaka: Asiatic
Society o Bangladesh. 1993
Jahan. Rounaq. Bangladesh Politics: Problems and issues, (Dhaka: IJPL. 987)
lain. C.K. 'lime tiulon and State Legislature in India, (New Delhi: Allied Publisher
Ltd. 1993)
lain. Ml'_ indian ('onstitutianal Lou'. 4th ed. (India: VVadhva and Compan y. 1994)
Jennings. Ivor. ('aid, jet Gai'e,'ninent, 3rd ed. (London: C'omhridge University Press,
1969)
Jennings. Ivor, The Lasi and the Constitution, 5th ed. (London: F1,l3S and Hodder
and Stoughton. 1976)
Law,
Jones. RI,. Garner's Administrative 7th ed. (London: l3utterworths_ 1989)
Kamal, Justice Mustafa. Bangladesh ('onstilution: 'Trends and Issues, (Dhaka:
Dhaka University. 1994)
Kahir. Abu[ Monjurul Hasnat. Ombudsman for Bangladesh: Problems and
Prospects. (1996)
Kapoor. AC .,elect Constiattions. I 2tli ed. [New Delhi'. S. ('hand & Company
(Pvt.) Ltd. 19)(9I
Kelsen. hans. General iheory o/'Lau' and State, (New York: Russell and Russell.
1961)
Khan. Zillur, Rahnian, Leadership Crisis in Bangladesh. (Dhaka: UPI.. 1984)
Khan. Mohamniad, Asghar. Generals in Politics: /'aki.vinn 1958-82, 1 Dhaks'. I.JI'L,
1988)
Khan. Mohammad Ayuh. Friends not Moslem's, (lahore. Karachi. Dhaka: Oxfi,rd
University Press. 1967)
Khan. Ataur Rahman, Oj'aratir Dui l3ncar (Two Years of Chief' Ministership).
(Dhaka: Standard Publishers Ltd, 1971
Khan. Mizanur Rahmani. ('oslitulion and Caretaker Government Debate (in
Bengiali) (Dhaka: City Publication, 1995)
Klan. Sirajul liasan. Electoral Denmocrac'm' Buried, (Ilolida: March 18, 1973)
Keer, Donald MM. The /.aw of the ,-isstm'alian ('omjstitulton, (Australia: The Law
Book Company ltd. 1925)
Constitution. Constitutional Law and Politics 541

Keith. Arthur. flcrricdale. A Constitutional i/isbn' of india 1600 193. 2nd Cd.
(London: Meth uen & Co. I id 1969)
Kochanck. Stanle y A. Patron-Client Politics and Business ill (Dhaka:
UPL. 993)
t.ilschultz. Ia\Tencc, Bangladesh: 1/ic Unfinished Revolution, (London: Led Press.
1979)
Lowell. A. I.awrcncc. i'he Gore;-nmeni of l:ngland Vol. 1, (New York: The
Mackmillan Company. 1910)
Mackintosh. john, P. 7/ic British Cabinet. 2nd ed. (London: Methuen & Co. Ltd,
1968)
Mahajan. V.D, The Constitution of inc/ia. lNcw Delhi: S. Chand & Company (Pvt.)
Ltd. 19891
Mahajan. V.D.Se/eci Modern Governments. [New Delhi: S. Cliand & Company.
19951
Maniruzzarnan. Talukder. The Bangladesh Revolution and its ,'iJicninath, (Dhaka:
LIPL 1982)
Mascarenhas. Anthon y. Bangladesh' .1 Legac^v of Bloo(l, (London, Sydne).
Auckland. Toronto: l-loddcr and Stougliton. 1986)
Max', Frskjne F. (edited b y Sir Charles Gordon), l'arlia,nc'ntarv Practices, 20th ed,
(l3uttcrworths [.td. 1983)
Mia. \V azed MA, Sonic Events .'lrozai(I llangahaodhu Sheikh hiujib and
Bangladesh, (in Bengali) ). (Dhaka: VI'I.. 1993)
Morrison, Lord. Government and Parliament. 3rd ed. (london: Oxford University
Press, 1967)
Munim, I-'.K.M.A. Rights of i/ic Citizen under the Constitution and law, (Dhaka:
Bangladesh Institute of Law and International AiThirs. 1975)
Munini F.K.M.A. Legal A spects of ilantial Lair. (Dhaka: Bangladesh Institute of
Law and International A tThirs. 1989)
Nayar. Kuldip. '1/ic .Juclgeineii1, (New Delhi: Vikas Publishing 1 louse I'\ I. Ltd. 1977)
Naseem....Hussain and Al Masud I lasanui.zaman. 1!'onii'ii in the Legislature in
Bangladesh. (Asian Profile. Vol. 25 No. I. Feb. 1 997)
Padfield, Cohn F. British ('onstiiutio,r lInde Simple.
l'andev. Dr. J,A, Constitutional Law of/nc/ia, 22nd cd. (Indkc Central law Agciie\
1991)
I'atwari. A.B.M. Malizijl Islam. Protection of the ('on.c/itution and /t,ulamc',ual
Ric,'/its under the .tla,'iial Lour iii Pakistan 1955 1 962. (Dhaka: Dhaka
University. 1988)
l'atvari. Maliiu I Islam- I. ihern' of The People: Bruci,, and /langladcs/i. ( Dhaka:
Institute ol I luman kiglits and Legal AIThies. 1987)
542 Bibliographical Index

Pirjada, Sarifuddin S. l"undainental Rig/us and constitutional Remedies in Pakistan,

(Lahore: All Pakistan Legal Decisions, 1966)
Phillips. O'L-lood. constitutional and Administrative Law, 7th ed. (London: .English
Language Book Society, 1987)
Phillips. Wade and, constitutional and Administrative Law, 1001 cd. (London:
Sweet and Maxwell.
Ra'hman, Latifur, Ci. Judicial independence and Accountabilit y of Judges and the
Constitution of Bangladesh, (20 BLD 2000 journal 85)
Rahman, Mozibur, Friends Not Foes: A Political Surve y of Pakistan, (Dacca:
MoziburRabman. 14 Uatkhola Road, 1968)
Rahman, Mizanur. Consumer Protection Law and the Swedish Approach.
(Dhaka-. Prudential Publications. 1994)
Rahman, Sirajur, Bangladesh: 15 Years of Independence. (Dhaka: UPL. 1987 (in
Bengali)
Rashid, Md. Abdur. Challenge to the Independence of Judiciary, (46 DLR)
Sayeed, K.R. The Political Swein in Pakistan. (Karachi: Oxlbrd University Press.
1967)
Seervai, H.M, Constitutional Law of India, 4th ed. (Bombay: N.M. Tripathy Pvt.
Ltd, 1993)
Seighart, Paul, The Internatiaonal Law of Human Rights. (Oxford: Clarendon Press,
1985)
Shukla, V. N. Constitution of India. 7th ed. (India: Eastern Book Company, 1988)
Siddiqui, Rejwan, Kathamalar Rajniti, (Politics of Rhetories, 1972 - 79) (Dhaka:
Nawroj Kitabistan, 1984)
Smith de, The Commonwealth and Its Constitution, (London: Stevens and Sons,
1964)
Smith, de and Brazier, constitutional and Administrative Law, 6th ed, (London:
Penguin Books, 1990)
Strong, C. F, Modern Political Constitutions, (London: E LBS, 1970)
Schwartz, Walter, How Bangladesh lost its Political i'irginiiv, Guardian, (London)
reprinted in the 'Weave' (Dacca), March 31. 1973)
Takwani, C.K. Lectures on Administrative Law, 2nd ed, (India: Eastern Book
Company, 1994)
Tope. T. K, Constitutional Law of India. (India: Eastern Book Company, 1986)
Turpin, Collin. British Government and the Constitution, 2nd ed, (London:
Weidenfield and Nicolson. 1990)
Vasak, Karel, The International Dimension on Human Rights, (Vol. I) (Unesco:
Paris, Greenwood Press. 1982)
Constitution, Constitutional Law and Politics 543

Wade. E.C.S. and Bradley, A.W. constitutional Law, 8th ed. (London: Longman,
1971)
Walker, David M. The Oxford Companion to Law, (Oxford: Clarendon Press. 1980)
Welch. American Govern,,,ent 3rd ed, (New York: West Publishing Camp.. 1990)
Wheare. K.C. Modern Constitutions, (London: Oxford University Press, 1966)
Zahir. Md, Dela y in Courts and Court Management, (Dhaka: BI LIA. 1985)
Zink, Harold, Modern Governmens, 2nd ed, (New York: D. Van Nostrand Company,
1963)
Ziring, Lawrence. Bangladesh: From Mujib to Ershad, (Dhaka: UPL, 1994)
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CONSTITUTION, CONSTITUTIONAL
LAW AND POLITICS : BANGLADESH
PERSPECTIVE
'01
la
MD. ABDUL HALIM
I,
CCB FOUNDATION: LIGHTING THE

CONSTITUTION, CONSTITUTIONAL
LAW AND POLITICS: BANGJ';: SH
PERSPECTIYf
MD. ABDUL HALIM
Barrister-al-Law (Uncclns ton)
I.L.M.

Published by:
CCB Foundation
Planners 'lower (Level-15, Suit No.2 & 3)
13/A, Sonargaon Road -
Dhaka- 1000
Copyright:
Reserved

To,,
My Primary, school Head Teacher
Md. Abdur Rahman g,RMP.UL 4IM4Jf
but for whose unstinted care,
attention, love, sacrific

On the arduous road to get education in niv life the people who
niacle a lot of sacrifices Jor 177C are 111017.1, and their C

PREFACE TO THE FOURTH EDITION
The continuing popularity of the first, second and third edition of this
book which was done ou

For information and assistance on particular queries, I am grateful to Mr.
Md. Abu Dawood, Director of the Bangladesh Parliam

CONTENTS
Chapter-1
PRIMARY IDEAS OF CONSTITUTIONAL LAW
21-30
Public and Private Law
2!
Constitutional Law & Administrative

Constitutional Supremacy and the Judicial Review
62
Who is to exercise the Power ofJudicia! Review
in a system of Constituti

Third Amendment
11
Fourth Amendment
Ill
* Background
* It introduced a so-called presidential system
in place ol purl ament

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Introductory Page
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Article 2
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Chapter 5 Talent Management (HRPS)
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Constitution, Constitutional Law and Politics Bangladesh Perspective - Abdul Halim

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Constitution, Constitutional Law and Politics Bangladesh Perspective - Abdul Halim

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CONSTITUTION, CONSTITUTIONAL

LAW AND POLITICS : BANGLADESH

MD. ABDUL HALIM

CCB FOUNDATION: LIGHTING THE DARK

MD. ABDUL HALIM

.411rights ale reserved. No pal-I of this publication ma y be reproduced or

First Published: February, 1998

Price : 11. 320.00 only

Sams Publication University Law Book Centre

Md. Siddiqur Rahman

Md. Yousuf All Khan

Khan M.A. Sobhan

Dr. Kazi Afifa Sultana

M.A. Khaleque (Sanu)

Anwar Hussain Panchayat

The collection of various data and information has been facilitated by

I am gratefully indebted to Dr. M. Ershadul Ban, Faculty of Law,

Md. Abdul Flalim

REASONS BEHIND nil:

Nature of the Government System after the 5th Amendment 161

Other Problems Confronting Constitutionalism 517

Election Commission under political Storm 470

4ublic Law: Public law determines and regulates the

For the purpose of this chapter it will be convenient to discuss

'Constitutional Law: Constitutional law actually forms the

''Administrative Law: LFrom a broader point of view

how the administration is controlled and made accountable .,) It

It is one of the common features of the continental legal

Though the distinction between constitutional law and

Private Law: Private law is that branch of law which

bstantive Law and Procedural Law

Nature of Constitutional Law

On the other hand, where the constitution is written and rigid,

Sce. Salmond.Jurisprudeflce, 10th ed, 1 1 . 461

considered the supreme or fundamental law of the land. It is

Thus if the constitutional law is considered the supreme law of

All administrative, substantive and procedural laws come under

state, for without it anarchy would result in the administration of

Aristotle defines a Constitution as "the way of life the state has

1According to C.F. Strong-"A Constitution may be said to be a

"According to Lord Bryce-"Constitution is the aggregate of laws

Some writers have defined Constitution in wider sense. Among

Strong. C.F. Modern Political Constitutions, (London : ELBS. 1970), P. II

Again, some have defined Constitution in narrower sense.

Written and Unwritten Constitution

judicial decisions and in some scattered documents, the constitution

Rigid and Flexible Constitution

Strong. C. F, Modern Political Constitutions , Ibid. 11.67

law in Britain. The British Parliament is supreme and it can enact or

On the other hand, the Constitution which cannot be amended

For example, the US Constitution is a rigid one. The

Strong. C.F. Modern Political Constitutions, (London: IiLBS. 1970), P. 140

call a convention to propose amendments to the Constitution. When

Likewise the Constitution of Bangladesh is a rigid one. Under

It has, of course, to be taken into account that an unwritten

While discussing Constitutional law in this book I would, off

Constitution and Constitutional Law

On the other hand, when the term Constitutional law' is used in

Constitution by Deliberate Creation

Sec. (3cttcL R.C. political Science. Ibid. P.249

new Constitution. Such an Assembly makes a new constitution

Again, there are a few examples of written constitutions which

Again, a government may be overthrown by a military take-

For example, Constitutions were created by such revolutionary

Constitution by Gradual Evolution

/T he Background of the Establishment of

The Proclamation of Independence

some vital issues in question- how could the international

Though the President was empowered with all uncontrolled

The Proclamation of Independence read with the Provisional

Provisional Constitution of Bangladesh Order, 1972 did not

Under this system Justice Abu Sayeed Chowdhury became the

Constitution Making Process

form of government instantly showed his and his party's long-

'1'Iembers of the Assembly

*7 ,/. First Session of the Assembly