Preamble
A.B.M. IMDADUL HAQUE KHAN
ADVOCATE, SUPREME COURT OF BANGLADESH;
INTERNATIONAL CONSULTANT, UNODC;
LEGAL ADVISOR, ACTIONAID INTERNATIONAL;
DANISH REFUGEE COUNCIL; USAID;
DEAN, FACULTY OF LAW, EASTERN UNIVERSITY
Introduction
The Constitution of Bangladesh starts with a preamble which is described as the
guiding star of the Constitution. This very preamble contains the legal as well as
moral basis of the Constitution; it also identifies the objectives and aims of the
State. The preamble is a part of our Constitution and cannot be amended without a
referendum.
Definition
Preamble is an introductory speech and it contains generally the objectives.-
Muhammad Ekramul Haque.
The preamble is a key to the statute and affords a clue to the scope of the
statute where the words construed in themselves without the aid of the
preamble are capable of more than one meaning. There is, however, another
rule or warning which cannot be too often repeated, that you must not
create or imagine an ambiguity in order to bring in the aid of the preamble.
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Preamble of a Constitution is something different from that of
an ordinary statute. A Constitution is not merely the outline of
the governmental structure; it is the embodiment of the hopes
and aspirations of the people cherished all the years and
includes the nation's high and lofty principles and people's life
philosophy.---Anwar Hossain Chowdhury V. Bangladesh, 1989
BLD
Pole Star of the Constitution
Justice Rahman considered as the pole star of the Constitution. The
reasons are,
It indicates the source from which the Constitution comes.
It contains the enacting clause which brings into force the
Constitution.
It declares the great rights and freedoms which the people of the
country intended to secure to all citizens and the basic type of
government and polity which was to be established.---In
Kesavananda case, AIR 1973 SC 1461 para 537
The Preamble of the Constitution of
Bangladesh
The first paragraph of the preamble of the Constitution of Bangladesh says
that “We the people of Bangladesh, having proclaimed our independence on
the 26th day of march, 1971 and through a historic war for national
independence, established the independent, sovereign People’s Republic of
Bangladesh;" Thus it indicates the source, viz. the people of Bangladesh from
which the Constitution comes.
The last paragraph of the preamble of the Constitution of Bangladesh says
that “In our Constituent Assembly, this eighteenth day of Kartick, 1379 B.S.
coresponding to the fourth day of November, 1972 A.D., do hereby adopt,
enact and give to ourselves this Constitution” Thus this paragraph of the
preamble appears to be the enacting clause of the Constitution of Bangladesh
which brings into force the Constitution.
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The first paragraph gives the idea of establishment of a state which will
be people’s republic where the seed of democracy is ripen and it is as well
as found in the third paragraph which speaks of a democratic process.
Moreover, second and third paragraphs together declare the great rights
and freedoms which the people of Bangladesh intended to secure to all
citizens.
Moreover the first paragraph precisely describes also the history of
creation of this state which mentions that Bangladesh has been created
through a historic war. Thus it embodies the glorious pride of this nation
which achieved its independence by its blood.
People as the enacting authority of the
constitution mentioned in the preamble
The preamble of the Constitution of Bangladesh speaks more by its fourth
paragraph that speaks of at least two things:
It imposes the duty upon the people of Bangladesh to safeguard, protect and
defend this Constitution and to maintain its supremacy as the embodiment of
the will of the people of Bangladesh, and consequently 2
It will make the people able to make their full contribution towards international
peace and co -operation in keeping with the progressive aspirations of mankind.
Thus it emphatically declares the commitment and duty of the people of
Bangladesh towards the Constitution and as well as to the mankind at
large. This particular emphasis on international peace by the preamble
undoubtedly gives a noble status to the Constitution.
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The Preamble to the Constitution of Bangladesh adopted on 4 November 1972 says it
expressly that the 'people' have in fact adopted and enacted this Constitution as it mentions
that 'We, the people of Bangladesh, do hereby adopt, enact and give to ourselves this
Constitution.
Constitution of the Republic of Cuba says that 'We, cuban citizens, WE DECLARE AND
ADOPT by means of our free vote in a referendum, the following CONSTITUTION.
The Preamble to the Constitution of India adopted on 26 November, 1949 says WE, THE
PEOPLE OF INDIA, do HEREBY ADOPT, ENACT AND GIVE TO OURSELVES THIS CONSTITUTION’.
The Preamble to the Constitution of Ireland adopted on 1 July 1937 says that 'We, the
people of Ireland, Do hereby adopt, enact, and give to ourselves this Constitution'.
Thus, it appears that both the Constitutions of Bangladesh and India borrowed these phrases
from the Preamble of Ireland as they used these words exactly in the Preamble obviously using
the terms 'People of Bangladesh' and 'People of India', respectively.
Is preamble a part of the constitution
In the context of the Constitution of Bangladesh, Preamble is
considered as a part of this Constitution and no contrary opinion is
found against it. This is proved both by the constitutional provision
and the history of the passing of this Constitution in the Constituent
Assembly in 1972.
If we look to the history of the passing of our Constitution in the
Constituent Assembly it will appear before us that the Speaker of the
Assembly on the 4th November just before passing of the
Constitution asked the House after passing necessary changes in the
draft preamble to vote on the issue that the amended 'preamble' is
to be made a part of the Constitution Bill and the House accepted it.
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Article 142 lays down the provisions regarding 'power to amend any provision of
the Constitution' and Article 142 (1 A) specifically prescribes the special
procedure to be followed to amend the preamble and thus it has been explicitly
recognized by the Constitution itself that the Preamble to it is obviously a part of
this Constitution.
Badrul Haider Chowdhury, J observed in the 8th Amendment case that:
We are relieved of the anxiety as to whether the Preamble is a part of the constitution or
not as it has been the case in some other country. Article 142(1 A) stipulates that a Bill for
amendment of the Preamble and provisions of Articles 8,48, 56 ,80 ,92-A and Article 142
when passed in the Parliament and presented to the President for assent "the President
shall within the period of seven days after the Bill is presented to him, cause to be
referred to a referendum the question whether the Bill should or should not be assented
to". Hence the Preamble can only be amended by referendum and therefore is a part of
the Constitution
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Justice Rahman said that the preamble is not only a part of the
Constitution of Bangladesh rather it is the 'Pole Star' of the Constitution.
To quote him
This preamble is not only a part of the Constitution; it now stands as an
entrenched provision that cannot be amended by the Parliament alone. It has
not been spun out of gossamer matters nor it is a little star twinkling in the sky
above. If any provision can be called the pole star of the Constitution then it is
the preamble.
Nature of the preamble and its
amendability
In the context of Bangladesh, it was decided in the 8th Amendment case,
that at least the concept of 'Rule of law' contained in the Preamble
constitutes the basic structure of the Constitution of Bangladesh. Badrul
Haider Chowdhury, J. has made it very clear in the following words:
That Constitution promises 'economic and social justice' in a society in
which 'the rule of law, fundamental human right and freedom, equality and
justice' is assured and declares that as the fundamental aim of the State.
Call it by any a name- 'basic feature' or whatever, but this is the basic fabric
of the Constitution which cannot be dismantled by an authority created by
the Constitution itself- namely, the Parliament.
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The amendment procedure of the Preamble and 'its amendability is rigidly
protected which can only be done by the people at referendum.
The Preamble of the Constitution of Bangladesh was amended in 1977 and
the Preamble of the Indian Constitution was amended also by the 42nd
Amendment in 1976. However, in Bangladesh, the Constitution 8th
Amendment case gives a landmark judgment establishing the concept of
basic structure of the Constitution, which is unamendable even by the
Parliament.
Oneness of the High Court Division was decided by the majority as a basic
structure, but there was no unanimous opinion regarding other basic
structures. M. H. Rahman J. observed that the 8th Amendment badly
impaired the structure of the 'rule of law' as contained in the preamble.
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Badrul Haider Chowdhury, J. expressly mentioned it as one of
the basic structures of the Constitution of Bangladesh while
he gave a list of basic features. Some of them are:
(2) The Preamble: It postulates 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.
(20) The declaration and pledges in the preamble have been enacted
substantively in Article 7 and 8. While Preamble and Article 8 have been
made unamendable, necessarily Article 7 remains as unalterable.
---------------------------------Anwar Hossain Chowdhury V. Bangladesh, 1989
BLD
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Thus we can reach to the conclusion considering
Article 142 and the 8th Amendment case together that
the part of the Preamble, which constitutes the basic
structure that, cannot be amended and the rest is
amendable under Article 142
Thank You
