LAW 201: Constitutional law I

Credits -3
Department of Law
Faculty: NS

Introduction and Definition of Constitution:

A constitution is the legal document in which various governing principles

are established, functions and procedural aspects of the government are
specified under which different organs of the government work.
Constitution is the supreme law of the land which is ascertained by Kelsen
as the "Grund Norm" in his Pure theory of law. American Constitution is
the pioneer of all the federal constitutions followed by the Canadian and
Australian constitution respectively.

Not all nation states have codified constitutions, though all such states
have a jus commune, or law of the land, that may consist of a variety of
imperative and consensual rules. These may include customary law,
conventions, statutory law,

The Constitution of Bangladesh is the supreme law of Bangladesh. It

declares Bangladesh as a secular democratic republic where sovereignty
belongs to the people; and lays down the framework defining fundamental
political principles of the state and spells out the fundamental rights of
citizens. Passed by the Constituent Assembly of Bangladesh on November
4, 1972, it came into effect from December 16, 1972, the day
commemorated as Victory Day in the country, marking the defeat of the
Pakistan Army in the Bangladesh Liberation War.

The constitution declares Bangladesh to be a unitary, independent and

sovereign Republic, founded on a struggle for national liberation, which
will be known as the People's Republic of Bangladesh. It pledges
nationalism, democracy, socialism and secularity as the fundamental
principles defining the Republic and declares the pursuit of a society that
ensures its citizens- the rule of law, fundamental human rights and
freedoms as well as equality and justice, political, economic and social.

When enacted in 1972, the Constitution of Bangladesh was hailed by

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

1.1 Study of constitutional law:

Constitutional law is a major focus of legal studies and research. For
example, most law students in the United States are required to take a
class in Constitutional Law during their first year, and several law journals
are devoted to the discussion of constitutional issues.
Judge-made law or international rules and norms, and so on:

1.2 Functions of constitutions

1.2.1 State and legal structure

Constitutional laws may often be considered second order rulemaking or

rules about making rules to exercise power. It governs the relationships
between the judiciary, the legislature and the executive with the bodies
under its authority. One of the key tasks of constitutions within this
context is to indicate hierarchies and relationships of power. For example,
in a unitary state, the constitution will vest ultimate authority in one
central administration and legislature, and judiciary, though there is
often a delegation of power or authority to local or municipal authorities.
When a constitution establishes a federal state, it will identify the
several levels of government coexisting with exclusive or shared areas of
jurisdiction over lawmaking, application and enforcement.

1.2.2 Human rights

Human rights or civil liberties form a crucial part of a country's constitution
and govern the rights of the individual against the state. Most jurisdictions,
like the United States and France, have a codified constitution, with a bill
of rights. A recent example is the Charter of Fundamental Rights of the
European Union which was intended to be included in the Treaty
establishing a Constitution for Europe that failed to be ratified. Perhaps the
most important example is the Universal Declaration of Human Rights
under the UN Charter. These are intended to ensure basic political, social
and economic standards that a nation state, or intergovernmental body is
obliged to provide to its citizens but many do include its governments.

Some countries like the United Kingdom have no entrenched document

setting out fundamental rights; in those jurisdictions the constitution is
composed of statute, case law and convention. A case named Entick v.
Carrington[1] il a constitutional principle deriving from the common law.
John Entick's house was searched and ransacked by Sherriff Carrington.
Carrington argued that a warrant from a Government minister, the Earl of
Halifax was valid authority, even though there was no statutory provision
or court order for it. The court, led by Lord Camden stated that,

"The great end, for which men entered into society, was to secure
their property. That right is preserved sacred and incommunicable
in all instances, where it has not been taken away or abridged by
some public law for the good of the whole. By the laws of England,
every invasion of private property, be it ever so minute, is a
trespass... If no excuse can be found or produced, the silence of the

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 books is an authority against the defendant, and the plaintiff must
have judgment."

Inspired by John Locke, the fundamental constitutional principle is that the

individual can do anything but that which is forbidden by law, while the
state may do nothing but that which is authorized by law.

The commonwealth and the civil law jurisdictions do not share the same
constitutional law underpinnings.

1.2.3 Legislative procedure

Another main function of constitutions may be to describe the procedure
by which parliaments may legislate. For instance, special majorities may
be required to alter the constitution. In bicameral legislatures, there may
be a process laid out for second or third readings of bills before a new law
can enter into force. Alternatively, there may further be requirements for
maximum terms that a government can keep power before holding an
election.

1.2.4 The Rule of Law

The doctrine of the rule of law dictates that government must be
conducted according to law.

Dicey identified three essential elements of the British Constitution which

were indicative of the rule of law:
1. Absence of arbitrary power;
2. Equality before the law;
3. The Constitution is a result of the ordinary law of the land.

1.3 The Separation of Powers

Often regarded as a second limb functioning alongside the Rule of Law to
curb the powers of the Government. In most modern nation states, power
is divided and vested into three branches of government: The Executive,
the Legislature and the Judiciary. The first and the second are harmonized
in traditional Westminster forms of government.

MAIN FEATCHERS OF THE CONSTITUTION OF BANGLADESH

PART I : THE REPUBLIC

(Art 1-7)

PART II: FUNDAMENTAL PRINCIPLES OF STATE POLICY

(Art 8-25)

Art 9: Promotion of Local Government

Art 10: Participation of women in national life
Art 11: Democracy and Human Rights
Art 22: Separation of the Judiciary from the Executive

PART III: FUNDAMENTAL RIGHTS

(Art 26- Art 47A)

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Art 26: Law inconsistent with fundamental rights to be void
Art 27: Equality before Law
Art 28: Discrimination
Art 29: Equality of Opportunity in Public Office
Art 31 : Right to Protection of the Law
Art 32: Protection of Right to Life and Personal Liberty
Art 33 : Safeguards as to Arrest and Detention
Art 35 : Protection in Respect of Trial and Punishment
Art 36: Freedom of Movement
Art 37 : Freedom of Assembly
Art 38 : Freedom of Association
Art 39 : Freedom of Thought, Conscience, and Speech
Art 40 : Freedom of Profession and Occupation
Art 41 : Freedom of Religion
Art 44 : Enforcement of Fundamental Rights

PART IV : THE EXECUTIVE : The President, The Prime Minister and the
Cabinet, Non-Party Caretaker Government, Local Government, The
Defence Service, The Attorney-General
(Art 48-64)

PART V: THE LEGISLATURE : The Parliament, Legislative and Financial

Procedures, Ordinance Making Power
(Art 65 – 93)

PART VI: THE JUDICIARY : The Supreme Court, Subordinate Courts,

Administrative Tribunal
(Art 94-117)
Art 110: Transfer of cases from subordinate courts to High Court Division
Art 111: Binding effect of Supreme Court Judgments
Art 112: All authorities, executive and judicial, in the republic shall act in
aid of the Supreme Court.

PART VII: ELECTIONS

(Art 118- 126)

PART VIII : THE COMPROLLER AND AUDITOR-GENERAL

(Art 127-132)

PART IX: THE SERVICES OF BANGLADESH: Services, Public Service

Commission

PART IXA: EMEMRGENCY PROVISIONS

(Art 141A-141C)

PART X : AMENDMENT OF THE CONSTITUTION

(Art 142)

PART XI Miscellaneous