Methods establishing constitution and making the Bangladesh constitution

Methods establishing constitution and making the Bangladesh constitution:

History shows four methods which modern have acquired their Constitution. These by grant, by deliberate creation, by gradual evolution.!

Methods establishing constitution and making the Bangladesh constitution

Methods establishing constitution and making the Bangladesh constitution:

Constitution by Grant

It is a historical fact that most modern states began with autocratic governments in which all political authority and power were vested the absolute hand of the ruler. Later, either because the ruler believed that the powers of the government and the manner their exercise should defined in a more formal way because the demands his subjects fear of revolution, the absolute ruler promulgated formal document the form of charter constitution which agreed to exercise his powers in accordance with certain rules laid down it. Such charters or constitutions are called constitutions grant.

For example, charter granted by Louis XVIII France, by Napoleon, by the emperor of Japan etc. were constitutions by grant. It to be noted here that professor Garner has described this type of Constitution as octroyed Constitution.²

Constitution by Deliberate Creation

Through deliberate creation a constitution may be found in the following two ways:

a) By Constituent Assembly; or

b) By Legislative Assembly³

After the establishment of a new state, it arranges a Constituent Assembly by the elected representatives with a view to making 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, the Indian Constituent Assembly adopted the Indian Constitution in 1949. Bangladesh through nine months of 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). Set 60 JAswad to novogilano)

Constitution by Revolution

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’ etat led by any elite class of the society. In such a case the new revolutionary government sometimes creates a new Constitution.

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 people. By 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.

The 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 16th 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 made by Bangabandhu Sheikh Mujibur Rahman. 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 some vital issues in question-how could the international community have knowledge about the forthcoming separate entity of Bangladesh?

How could Bangladesh which was yet to achieve independence through fighting could seek assistance from India and other international communities?; 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 earstwhile East Pakistan who could flee to India assembled in Calcutta.

With their prompt initiative a formal Proclamation of Independence was drafted 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 17th April, 1971 at Meherpur in Kustia District. 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. It provided for presidential system of government and declared that the President –

i). shall be the Supreme Commander of all the Armed forces of the Republic.

ii) shall have power to appoint a Prime Minister and such other Ministers as he considers necessary.

iii) shall have the power to levy taxes and expend moneys,

iv) shall have the power to summon and adjourn the Constituent Assembly; &

(v) 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 Independence.

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.

It 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 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 y 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’

Supreme Court of Bangladesh
Supreme Court of Bangladesh

Constitution-Making Process

The Constituent Assembly of Bangladesh Order, 1972

The first step in making the Constitution of independent Bangladesh was 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 Assembly 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 legislature for Pakistan it would make all national laws for Pakistan; it had control over the cabinet; the cabinet was collectively responsible 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 forum2.

It may, therefore, be said that though Sheikh Mujib by changing the form of government instantly showed his and his party’s long-cherished intention to establish a responsible government with stminster 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 Banglades.

Members 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, 1971. The total members elected as MNA & MPA were 469 (169) MNAS & 300 MPAs). Among them 12 died in the meantime, 2 became Pakistani citizens, 5 were arrested under the Collaborator’s Order, 46 were declared disqualified under the Constituent Assembly (Disqualification of Membership) Order and I went to a foreign service.

The remaining 403 members manned the Constituent Assembly to the last of its life. Out of them 400 members belonged to the Awami League, one belonged to National Awami Party (NAP) (Suranjit Sen Gupta) and two were independents.

First Session of the Assembly

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 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.

Second Session of the Constituent Assembly

The 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 Gupta.

But most of the amendments were relating to the linguistic errors of the Bill. The Third reading on the Bill was held on November 4 and on this very day the Assembly adopted the Constitution for Bangladesh. It was given effect from the 16th December, 1972 the first anniversary of the ‘victory day’.

Law & Justice Gurukul
Law & Justice Gurukul

Salient Features of the Constitution of Bangladesh, 1972

1. Written Constitution:

The Constitution of the Peoples’ Republic of Bangladesh is a written document. It was formally adopted by a Constituent Assembly on a specific day (4th Nov. 1972). It contains 153 articles, 1 preamble and 4 Schedules.

2. Rigid 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.

3. Preamble:

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 the moral basis of the Constitution; it also identifies the objectives and aims of the state.

4. Supremacy of the Constitution:

Constitutional supremacy has ensured in the of Bangladesh. Because article 7(2) provides that “This Constitution is the supreme law of the Republic if any other law is inconsistent with this Constitution that other law shall, to the extent of the inconsistency, be void.”2

5. Unitary Governmental System:

Article 1 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. Fundamental 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; and (iv) Secularism. All other principles derived from these four shall also constitute the fundamental principles of state policy.³

8. Fundamental Rights:

Part-III 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.!

9. Parliamentary form of Government:

The Constitution of Bangladesh provides for a Westminster type of parliamentary system, This 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.

10. Independence of Judiciary:

The Constitution of 1972 ensured the independence of judiciary.

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 exercised 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 parliament. Again, the security of tenure of the subordinate judges was vested in the Supreme Court.

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 grant of leave) and discipline of persons employed in the judicial service and magistrates exercising judicial functions was vested in the Supreme Court.² Thus the entire judiciary except some aspects of magistrate’s courts was made independent.

11. Ombudsman:

Provisions for the establishment of an ombudsman were inserted in Article 77.

To provide machinery 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 ar office reflected the desire of the Awami League to strengthen the functioning of democracy in the country.²

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 parliament’, this responsibility cannot be ensured in practice due to the barricade created by Article 70 of the Constitution.3

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,uemagistrate’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.

Legal books in court room
Legal books in court room

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. (see, details, PP. 344-350).

2. Administrative Tribunal

Following the system of French specialised court of Tribunaux Administratif 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. Before 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 law establish more administrative tribunals exercise jurisdiction respect service and the acquisition, administration. management and disposal of any property vested managed government [Art. 117(1)|.

ii) Where administrative tribunal established no court entertain any proceeding make order respect of matter falling within the jurisdiction such tribunals Art. 117(2)].

iii) Parliament may, by law, provide for appeals from, or review of. 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 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. 323 A) 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 –

(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 some independent organ of the state is a must…….”

(ii) “The system of ‘Council d’ Etat’ and ‘Tribunaux Administratif 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.

It is, however, fortunate that Justice Sahabuddin 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:

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 they may be. For the purpose of establishing stable parliamentary democracy in Bangladesh a provision like this is unavoidable. These provisions would certainly strengthen the fabric of parliamentary democracy in Bangladesh by curbing unprincipled and unethical political defections and side swapping.

However, in providing for prevention of floor-crossing the Constitution-makers seem to have done more than what was necessary. Anti-hopping laws are essential only for the stability of the government and that can better be ensured if these laws are imposed when the cabinet faces a no-confidence or confidence motion. But as the provision goes in Article 70, no member of the ruling party can exercise his democratic right to dissent even when the government passes an undemocratic law.

Article 70 undermines the whole spirit of responsible government and leads to elected dictatorship in Bangladesh. 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 2 floor-crossing can be prevented and the spirit of responsible parliamentary government can be sustained. Also an interview with Barrister Amir-UI Islam gives the idea that the Constitution-makers had neither knowledge of, nor could they contemplate the compromising process.

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. If 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 communal 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 Mujib imposed ‘Bangalee nationalism’ over the tribal people who are in no 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).

Source:

Constitution, Constitutional Law and Politics : Bangladeshi Perpective – MD Abdul Hakim

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