Introduction:
The
preamble to the Constitution of Bangladesh is the introductory statement that sets out the guiding purpose and
principles of the document. The preamble is
not an integral part of the constitution in the sense that it is
enforceable in a court of law. Understanding the preamble to the Bangladesh
Constitution is important because it sets
out the purposes or functions of government as envisioned by the framers.
In the Preamble of Bangladesh Constitution function of the government is
described, and the function should be done by the citizens in order to make a
“more perfect democratic and socialist country” is also describe.
History of Preamble:
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.
The
Constitution of Bangladesh with a elaborate Preamble was written and finally
accepted on the 4th November, 1972 for conducting the state. It took effected
from the 16th December 1972. At a later stage at different times many
amendments to the constitution were made .According to this amended
constitution the state administration is going on.
What 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. Likewise the preamble to a
Constitution is its philosophy because it contains those ideals and principals
on the basis of which the whole structure of the constitution is erected. But
though in case of ordinary statues much importance is not always attached to
the preamble, extreme importance is always attached to a preamble in a
constitutional statute. The preamble to a Constitution serves the following
three main purposes:
It indicates the source of the Constitution i.e. the legal and moral basis of the Constitution.
It
expresses in a nutshell the ideas and aspirations of the Objectives of the
Constitution. The declared objection is the secure justice, liberty, equality
and fraternity to all the citizens. Thus, the preamble expresses the political,
moral and religious values which the constitution is intended to promote. It
works as the guiding star for the interpretation of the Constitution.
It identifies the legal basis of the Constitution:
“We, the
people of Bangladesh, having proclaimed our Independence on the 26th day of
March, 1971 and through a historic struggle for national liberation,
established the independent, sovereign People's Republic of
Bangladesh”
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
people’s representatives. The preamble, therefore, indicates that the legal
basis of our Constitution is the people-the ultimate source of all power.
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 refection of the aspirations of the people of
Bangladesh, it is also the duty of this very people to obey it. Again, as the
supreme 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 be
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-
“Pledging that the high ideals of nationalism, secularity,
democracy and socialism, which inspired our heroic people to dedicate
themselves to, and our brave martyrs to sacrifice their lives in the struggle
for national liberation, shall be fundamental principles of the Constitution;”
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, it 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
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 labor-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 can be said
that there is no doubt as to 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 struggler 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 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.
3. It identifies the goal of the state:
“Further pledging that it shall be a fundamental aim of the
State to realize through the democratic process, a socialist society free
from exploitation, a society in which the rule of law, fundamental human rights
and freedoms, equality and justice, political, economic and social, will be
secured for all citizens;
Affirming 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 so that we may prosper in freedom and may
make our full contribution towards international peace and co-operation in
keeping with the progressive aspirations of mankind;”
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, which defines Bangladesh as a secular democracy
Preamble and the Operative Part of the Constitution:
Sometimes
it is argued that the preamble is not including
in the operative part of the Constitution. It is not an integral part of the
constitution in the following senses:-
Firstly,
if it were dropped from the constitution would, in no way, be hampered.
Secondly,
it is not necessary that every statute or Constitution should being 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 expressly or impliedly prohibited by the
constitution .It was opined by the Supreme Court of USA that a preamble is
not an operative part of the Constitution. It indicates only the general
purpose 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.
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 power. It has limited application and can be
resorted to where there is any ambiguity or where the object or meaning of any
enactment is not clean. Where the enabling part i.e. the operative part of the
Constitution is explicit and unambiguous, the preamble cannot be restored 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 contradict the terms of the preamble. Also the Powell V. Kempton 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 state intends to reach; and another, that if
an enactment is itself clear and unambiguous, no preamble can qualify or cut
down the enactment .
How 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.
Rule 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 adoption preventive detention, emergency etc.
Black provisions were inserted in the constitution through the second Amendment
arresting all the possible way to ensuring rule of law. Then in 1975 by the 4th
Amendment multi-party democratic system was buried and one party dictatorial
presidential system was introduced undermining, 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 system 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 they stand now, are
insurmountable stumbling block against the ensuring rule of law .
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 preventive detention, emergency
provisions etc. act as a threat towards the enjoyment of fundamental rights.
Political, Economic and Social Equality:
A large number of Social and Economic rights have got their
Constitutional recognition. But without a reasonable economic equity among
people no social or political equality can be ensured. 41years have passed
since Bangladesh achieved independence but economic
inequality rather than equality is reining 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.
Recent View of 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 Bharti’s case
the 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.
Legal Position and Utility of a Preamble:
It
is a well-established rule of interpretation that it is only when an Act is ambiguous (that is, not clear), that a
preamble can be made use of to throw further light on the express provisions of
the enactment. Thus, the Preamble cannot
be made use of to control an
enactment, when the enactment itself is expressed in clear and unambiguous
terms. In other words, an ambiguity cannot be created or imagined just to draw
a clarification from the Preamble, as that would mean frustration of the main
enactment.
The
preamble seeks to give Bangladesh a Democratic Constitution; Art.21 should
be read in such a way as would invalidate any law opposed to the principals
of natural justice. The Supreme Court, however, rejected this argument,
observing that the word “law” in Art. 21
refers to “position or state-made law”, and not natural law or justice.
The
preamble to the constitution was discussed by the Supreme Court, where the
Court said that in the words of the eminent jurist, Story, the preamble was a ‘key to open the mind of makers’.
In
the same case, the Supreme Court observed that “….never-the less, the preamble
is not a part of the Constitution”. It is submitted with great respect to their
Lordships of the Supreme Court that such a view is not correct, and that
rightly speaking the preamble does form a part-and a very significant one-of
the constitution. In fact, in one case (Dalavi
V. State of Tamil Nadu, A.I. R. 1976 S.C. 1559), the Supreme Court itself
relied upon the preamble when striking down a pension scheme formulated by the
Government of India.
In
one English case (Powell V. Kempton Park
Race Course Co. (1899) A.C. 143), Lord Halsbury observed as follows:
“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 and enactment is itself clear and unambiguous, no preamble can quality or
cut down the enactment.”
Weather Preamble can be amended?
The
question was raised for the first time
before the Indian Supreme Court in Kesavananda Bharati’s 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 identity. 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 Bangladesh also held in the 8th Amendment case that preamble
is a part of the constitution and it is a basic structure of our constitution. 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.
Article
142 deals with the power to amend any
provision of the Constitution
Notwithstanding
anything contained in this Constitution-
(a)
Any provision thereof may be amended by way of addition, alteration,
substitution or repeal by Act of Parliament:
Provided
that-
(i)
No Bill for such amendment shall be allowed to proceed unless the long title
thereof expressly states that it will amend a provision of the Constitution;
(ii)
No such Bill shall be presented to the President for assent unless it is passed
by the votes of not less than two-thirds of the total number of members of
Parliament;
(b)
When a Bill passed as aforesaid is presented to the President for his assent he
shall, within the period of seven days after the Bill is presented to him
assent to the Bill, and if he fails so to do he shall be deemed to have
assented to it on the expiration of that period”.
Conclusion
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 enforce it directly. The preamble, therefore, bears no legal significance. But it has
other important significance which is sometimes more than legal importance.
First,
it is the preamble 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,
Second,
it indicates the moral basis or the philosophy of the whole nation. 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 nation .Because it is
pledged in the preamble that all government al works would be administered in
conformity with preamble and taking it as a pole star.
Fourth,
the 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.
____________the end_____________
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