Preamble of Bangladesh Constitution; Operative part or not?

The Preamble of Bangladesh Constitution embodies the fundamental values and the philosophy, on which the Constitution is based, and the aims and objectives, which the founding members of the Constitution enjoined the polity to strive to achieve. Though by itself, it is not enforceable in Court of Law, the Preamble to our Constitution states the objects which the constitution seeks to establish and promote and also aids the legal interpretation of the Constitution where the language is found to be ambiguous.

Whether a preamble is an operative part of a constitution or not?

ConstitutionalismBasically, there are arguments on both side, the relevant landmark cases came from Indian judicial decisions. In the case, Golaknath v. State Of Punjab (1967 AIR 1643, 1967 SCR (2) 762) the Indian Supreme court held that parliament cannot curtail any of the Fundamental Rights in the Constitution. In the case preamble is declared as a legitimate aid in the interpretation of the provisions in the constitution but not as an operative part, it was said that preamble of the Constitution stands on the same footing as the Preamble of an Act.[1]

Under English authorities, a preamble cannot be used to restrict or extend the enacting part of the statute when the language, object and scope of the Act are unambiguous and not in doubt. It means that the preamble of an Act cannot control, qualify or restrict the meaning and application of its enacting part if that part is explicit and unambiguous. But, if the enacting part is ambiguous, the Preamble can be used to explain and elucidate it. In Powell v. Kempton Park Racecourse Co. Ltd.[2]

The issue that whether the preamble to the constitution of India can be amended or not was raised before the Supreme Court in the famous case Kesavananda Bharati v. the State of Kerala.[3]   An interesting argument advanced, in this case, has been noted by Y.V. Chandrachud, J. that the Preamble may be a part of the Constitution but is not a provision of the Constitution and therefore, we cannot amend the Constitution so as to destroy the Preamble. This notion directed that the preamble of a constitution is basic part of a constitution which cannot be changed like other provisions of the constitution; this is known as Doctrine of Basic Structure.

It can be defined as follows; “Doctrine of basic structure is a judge-made principle stating that a country’s constitution has certain basic features that cannot be amended by its legislative body. The amendment of these features will result in drastic changes to the constitution and render it unrecognizable. Hence, amendments to a constitution must not be in conflict with the basic structure of the constitution. Alternatively, a country’s legislative body, with strong reasons usually related to public safety, is allowed to amend any provisions in the country’s constitution, but the amendments cannot change the basic feature of the constitution.”

The question of Basic Structure had been a long debate in the case of Anwar Hussain Vs. Bangladesh[4] (8th Amendment Case)

This is the first judgment whereby the Supreme Court of Bangladesh as striking down an amendment to the constitution made by the parliament. By two Writ petition, the amended Art 100 & the notification of the Chief Justice were challenged as ultra vires. A division bench of the HCD dismissed the petition summarily. Leave was granted by the Appellate Division by a majority of 3 to 1 striking down the 8th amendment. The principal argument of the judgment is that the constitution stands on certain fundamental principles which are its structural pillars which the parliament cannot amend by its amending power for; if these pillars are dismissed or damaged then the whole constitutional structure will be down.

The Basic structures of Bangladesh Constitution are:

  1. Sovereignty belongs to the people.
  2. Supremacy of the Constitution
  3. Democracy
  4. Republican government.
  5. Independence of Judiciary.
  6. Unitary state.
  7. Separation of powers
  8. Fundamental rights.

These structural pillars of the constitution stand beyond any change by amendatory process. Thus the court declared the 8th Amendment ultra vires.

Furthermore, the court said “If any provision can be called the ‘pole star’ of the constitution, then it’s Preamble. The impugned amendment is to be examined on the touchstone of the preamble with or without restoring to the doctrine of basic structure. The preamble is not only a part of the constitution; it now stands an entrenched provision that cannot be amended by the parliament. Though this amendment it simply destroys the objectives of rule of law which is enunciated is our preamble.” Thus preamble of Bangladesh Constitution has recognized as basic structure of Bangladesh constitution by Bangladesh supreme court being the guardian of it.

The preamble of the Bangladesh Constitution

The preamble of our constitution is the soul of our constitution. The whole constitution depends on the preamble and works as a description of it.

Its first line “We the people of Bangladesh, having proclaimed our independence…” and the last paragraph “In our Constituent Assembly…” established all the power of the country belongs to the people of Bangladesh (Art-7). It also mentions the historic struggle through which we got our independence and indicate our constitution is made with proper way with the representation of people of Bangladesh.

In its second paragraph, it established the fundamental principle of the state. Namely: Nationalism, socialism, democracy and secularism.  These pillars uphold all of our constitution.  (Later described on Part II)

The third paragraph draws the spirit of the second paragraph and confirms of its application by mentioning democratic process, rule of law, fundamental human rights and freedom etc and these would be the fundamental aim of the country. (Later described on Part III)

The supremacy of the constitution and its protection by the people is confirmed by the fourth paragraph it also said our foreign policy would be international peace and co-operation in keeping with the progressive aspiration and mankind.

1[ BISMILLAH-AR-RAHMAN-AR-RAHIM
(In the name of Allah, the Beneficient, the Merciful)/

In the name of the Creator, the Merciful.]

PREAMBLE

We, the people of Bangladesh, having proclaimed our independence on the 26th day of March, 1971 and through 2[ a historic struggle for national liberation], established the independent, sovereign People’s Republic of Bangladesh;

3[ Pledging that the high ideals of nationalism, socialism, democracy and secularism, which inspired our heroic people to dedicate themselves to, and our brave martyrs to sacrifice their lives in, the national liberation struggle, shall be the fundamental principles of the Constitution;]

Further pledging that it shall be 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 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;

In our Constituent Assembly, this eighteenth day of Kartick, 1379 B.S., corresponding to the fourth day of November, 1972 A.D., do hereby adopt, enact and give to ourselves this Constitution.

[1] V.N. Shukla, Constitution of India, Eastern Book Company, Lucknow, 1990, pp.3, For details see,Maxwell, The Interpretation of Statutes (12th Edn. 1969) pp. 6-9

[2] 1899 AC 143, 153 (HL)

[3] (1973) 4 SCC 225; AIR 1973 SC 1461

[4] 41 DLR (AD) 165 or 1989 BLD

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Rayhanul Islam

Legal activist & Practitioner - Editor - Researcher - Learner; A person who uses Logic & Law as his tool where psychology & Philosophy plays a role, he is on a quest to bring positive change to the legal sector of Bangladesh. He works as a lawyer and promotes legal knowledge and human right concept to the root level. He can be reached at: [email protected]

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