A History of The Constitution of Bangladesh

A History of the Constitution of
Bangladesh
Marking the 50th anniversary of Bangladesh’s Constitution, this book gauges

its development from 1972 to 2022, focusing on its foundational goals,
performances, and current challenges.
The collection, presenting diverse but issue-specific chapters, shows how the
people, political parties and leaders, and constitutional and legal institutions
interact with each other in advancing, breaking, and remaking their Constitution.
It examines the local context, parliamentary history, and interpretive tools
adopted by the Supreme Court in understanding the Constitution as well as
the future prospect of constitutional politics and practices. The work brings
together legal professionals and constitutional law scholars to encapsulate the
panorama of the country’s constitutional evolution. The authors look back to
the history of constitution-making, to reflect critically on the present in light of
the founding goals, spirits, and aspirations and with a view to ofering a forward-
looking and resilient vision of constitutionalism in Bangladesh.
The book will be of interest to researchers, academics, and policy-makers
working in the areas of comparative constitutional law and politics and South
Asian Studies.
Ridwanul Hoque is Senior Legal Ofcer at Charles Darwin University, Australia.
Rokeya Chowdhury is an independent law and society researcher and is

currently working with a Montreal-based law firm as its Senior Corporate
Mobility Advisor.
Comparative Constitutional Change
Series editors:
Xenophon Contiades
Professor of Public Law, Panteion University, Athens, Greece and Managing
Director, Centre for European Constitutional Law, Athens, Greece.
Thomas Fleiner
Emeritus Professor of Law at the University of Fribourg, Switzerland.
Alkmene Fotiadou
Research Associate at the Centre for European Constitutional Law, Athens, Greece.
Richard Albert
The William Stamps Farish Professor in Law and Professor of Government at
the University of Texas at Austin, USA.
Comparative Constitutional Change has developed into a distinct field of con-

stitutional law. It encompasses the study of constitutions through the way
they change and covers a wide scope of topics and methodologies. Books
in this series include work on developments in the functions of the constitu-
tion, the organization of powers and the protection of rights, as well as research
that focuses on formal amendment rules and the relation between constitu-
ent and constituted power. The series includes comparative approaches along
with books that focus on single jurisdictions, and brings together research
monographs and edited collections which allow the expression of diferent
schools of thought. While the focus is primarily on law, where relevant the
series may also include political science, historical, philosophical and empirical
approaches that explore constitutional change.
Also in the series
Accommodating Diversity in Multilevel Constitutional Orders

Legal Mechanisms of Divergence and Convergence
Maja Sahadzic, Marjan Kos, Jan Kukavica, Julian Scholtes and
Jakob Gasperin Wischhof
Constitutional Law and Politics of Secession

Edited by Antoni Abat i Ninet
A History of the Constitution of Bangladesh

The Founding, Development, and Way Ahead
Edited by Ridwanul Hoque and Rokeya Chowdhury
For more information about this series, please visit: www.routledge.com/Comparative-Constitutional-

Change/book-series/COMPCONST
A History of the Constitution
of Bangladesh
The Founding, Development,
and Way Ahead
Edited by Ridwanul Hoque and

Rokeya Chowdhury
First published 2024
by Routledge
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© 2024 selection and editorial matter, Ridwanul Hoque and Rokeya
Chowdhury; individual chapters, the contributors
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British Library Cataloguing-in-Publication Data
A catalogue record for this book is available from the British Library
ISBN: 978-1-032-23329-1 (hbk)

ISBN: 978-1-032-23330-7 (pbk)
ISBN: 978-1-003-27681-4 (ebk)
DOI: 10.4324/9781003276814
Typeset in Galliard
by Apex CoVantage, LLC
All martyrs of the 1971 Bangladesh Liberation
War and members of the Constituent Assembly
of Bangladesh
Contents
List of contributors x
List of figures xiii
Preface xiv
Acknowledgements xv
1 The fifty years of Bangladesh’s constitutional journey:

reflections and hopes 1
RIDWANUL HOQUE AND ROKEYA CHOWDHURY
PART I
The founding of the Constitution, competing legal
norms, and identity building 27
2 The emergence of Bangladesh’s legal system:

revolutionary legality and a new rule of recognition 29
NAFIZ AHMED
3 The Constitution of Bangladesh and international law 44

KAWSER AHMED
4 Secularism and Islam as the state religion: conflict

or coexistence? 58
MUHAMMAD REZAUR RAHMAN
PART II
Constitutionalism, rule of law, and judicial review 75
5 Rule of law within the constitutional scheme:

a judicial perspective 77
SYED REFAAT AHMED
viii Contents
6 Judicial policy-making by the Supreme Court

of Bangladesh 100
MD ABDUL HALIM
7 Judicial review and the separation of powers: is one

contingent upon the other? 112
CHOWDHURY ISHRAK AHMED SIDDIKY
PART III
Political parties, executive authority,
and parliament under the constitutional scheme 127
8 Constituting limits and accountability of the executive

power in Bangladesh 129
MD LOKMAN HUSSAIN
9 Parliament of Bangladesh: constitutional position and

contributions 145
M JASHIM ALI CHOWDHURY
10 Political parties in the process of constitution-making

and amending: from multi-party to one-party dominant
politics? 161
NIZAM AHMED
PART IV
Social justice, inclusion, and the protection of rights 179
11 Constitutional protection of economic and social human

rights: intention of the constitution-makers and judicial
interpretations 181
MUHAMMAD EKRAMUL HAQUE
12 Locating women within ‘we, the people’ in the

Constitution of Bangladesh 193
PSYMHE WADUD
13 Justice as fairness and the Constitution of Bangladesh 209

TASHMIA SABERA AND NAVEED MUSTAHID RAHMAN
Contents ix
14 Constitutionalism interrupted or constitutionalism

absent?: the divergence of Constitution and politics
in Bangladesh 224
ALI RIAZ
Index 241
Contributors
Kawser Ahmed is an advocate practising in the Supreme Court of Bangla-

desh. His practice area includes constitutional remedies, dispute settlement,
international law, and human rights. His research interest includes con-
stitutional law, international law and organisations, international dispute
settlement, and human rights. He has recently published an edited volume.
Nafiz Ahmed is a lecturer in law at North South University, Dhaka, Bangla-
desh. He previously worked as a lawyer with a Dhaka-based law firm, Sat-
tar & Co. His research interest lies in public law theory and jurisprudence.
He has published research papers on public law compensation and the basic
structure doctrine.
Nizam Ahmed is a former professor of public administration at the Univer-
sity of Chittagong, Bangladesh. A noted scholar of parliamentary studies
in South Asia, Prof Ahmed has a keen interest in constitutional law and
politics. He has published extensively on local government, party politics,
non-party caretaker government, and parliamentary behaviour.
Syed Refaat Ahmed is a long-serving judge of the Supreme Court of Bangla-
desh. Since his elevation to the bench in April 2003, Justice Ahmed has ad-
judged an extensive range of cases, of which the more significant judgments
are in the fields of constitutional law, the death penalty, criminal appeals, ad-
miralty, arbitration, and company, labour/employment, trademark, customs,
and taxation laws. Justice Ahmed has a number of previous publications.
M Jashim Ali Chowdhury is a lecturer in law at the University of Hull,
United Kingdom. He is the author of a widely read constitutional law text-
book. He has published extensively on Bangladesh’s constitutional issues
with reputed national and international publishers.
Rokeya Chowdhury is an independent law and society researcher and is
currently working with a Montreal-based law firm as its Senior Corporate
Mobility Advisor. While adopting an interdisciplinary approach to legal stud-
ies, her niche area of research is constitutional law, including freedom of ex-
pression, the doctrine of basic structure, and discrimination and the law.
Contributors xi
Md Abdul Halim is a lawyer, practising in the Supreme Court of Bangladesh.

He has written over sixty law books including in the field of Bangladeshi
constitutional law. A leading public law practitioner, he has a special reputa-
tion for public interest litigations for the protection of the rights of children
and other vulnerable groups.
Muhammad Ekramul Haque is a professor of comparative constitutional law
at the Department of Law, University of Dhaka, Bangladesh. He has pub-
lished extensively on constitutional law, human rights, and Muslim family law
issues in leading law journals and authored and edited books in these fields.
Md Lokman Hussain is an assistant professor at the Department of Law
and Human Rights at the University of Asia Pacific, Dhaka, Bangladesh.
His research interest is in the field of constitutional and political theories,
criminal justice, and environmental governance. His recent work includes a
chapter in Bangladesh and International Law (Routledge, 2021).
Ridwanul Hoque was a professor of law at the University of Dhaka, Bangladesh
until 2022. He is currently in the role of Senior Legal Ofcer at Charles
Darwin University, Australia. A noted scholar of Bangladeshi constitutional
law, Prof Hoque has held visiting research and/or teaching positions at Ed-
inburgh University, Cornell Law School, Melbourne Law School, La Trobe
University, Charles Darwin University, and National Law University, Delhi,
India.
Muhammad Rezaur Rahman teaches law at the University of Asia Pacific,
Dhaka, Bangladesh. He is an afliate researcher at the Centre for the Study
of Ethnicity and Citizenship, the University of Bristol, United Kingdom.
He has a research interest in South Asian secularism and law and religion.
Naveed Mustahid Rahman is currently a G. Ellsworth Huggins Graduate
Fellow at the University of Missouri-Columbia. He previously taught law at
Bangabandhu Sheikh Mujibur Rahman Science and Technology University,
Bangladesh. He has an MA in political science from Central European
University, Austria, and an LLM in international and comparative law from
the University of Dhaka, Bangladesh.
Ali Riaz is Distinguished Professor of Political Science at Illinois State Uni-
versity, USA, a non-resident senior fellow of the Atlantic Council, and the
president of the American Institute of Bangladesh Studies. His research
interests include democratisation, violent extremism, religion and politics,
and South Asian politics. His recent publications include an edited volume
Religion and Politics in South Asia (Routledge, 2021).
Tashmia Sabera is an assistant professor in law at Bangladesh University of
Professionals (BUP). She is currently pursuing an MA in Philosophy at the
University of Missouri—St. Louis. She led a research project on distributive
justice and development with funding from the Centre for Higher Studies
xii Contributors
and Research (CHSR) at BUP, Dhaka, Bangladesh. She contributed a

chapter in Bangladesh and International Law (Routledge, 2021).
Chowdhury Ishrak Ahmed Siddiky is a practising lawyer at the Supreme
Court of Bangladesh and an adjunct associate professor at the University
of Asia Pacific, Dhaka, Bangladesh. He has published extensively on energy
security, cross-border pipelines, international law, and comparative consti-
tutional law. He edited The Rule of Law in Developing Countries: The Case
of Bangladesh (Routledge, 2018) and is also the author of The Geo-Politics of
Energy in South Asia: The Case of Bangladesh (Routledge, 2021).
Psymhe Wadud is a lecturer in law at the University of Dhaka, Bangladesh.
She earlier worked with Bangladesh University of Professionals and the
Bangladesh Institute of Law and International Afairs (BILIA). She also
worked closely with the United Nations Ofce on Drugs and Crime (UN-
ODC) to support the criminal justice systems in South Asia in integrating
gender perspectives into measures against terrorism and violent extremism.
Her research interests focus primarily on constitutional law, international
human rights law, criminal law, and gender justice.
Figures
14.1 Voice and Accountability Score of Bangladesh, 1996–2020 231

14.2 Rule of Law Scores of Bangladesh, 1996–2020 238
Preface
This edited volume is a celebratory project commemorating the 50th year

of the Constitution of Bangladesh in 2022. This book has brought together
both early-career and established scholars, as well as legal professionals to
look back to the history of constitution-making in Bangladesh, to critically
reflect on the present of the country in light of the founding goals, spirits,
and aspirations and ofer a forward-looking and resilient vision of constitu-
tionalism in Bangladesh.
Due to the efects of the COVID-19 pandemic and the ensuing difculty
with which some of our contributors were faced, this volume could not touch
upon some significant and evolving issues, such as the right to liberty and free
speech, the identity of indigenous peoples, rights of sexual minorities, rights of
diferently abled citizens, and environmental rights, to name a few. Nevertheless,
we hope that this volume will add to the learning and practice of constitutional
law in Bangladesh and act as a source of reference for future research in some
of these pertinent areas.
Acknowledgements
The editors are thankful to all the contributors to this volume for their hard
work and dedication in bringing this project to fruition. We would like to
extend our special thanks to the Hon. Justice Syed Refaat Ahmed, Prof Ali
Riaz, and Prof Nizam Ahmed for finding time from their busy schedule. We
are deeply indebted to Dr Jashim Ali Chowdhury (Hull University), Prof
Mohammad Mahbubur Rahman (University of Dhaka), Prof Jaclyn Neo
(National University of Singapore), Dr Moiz Tundawala (Jindal Global Law
School, India), Prof Werner Menski (SOAS, London), Dr Md Saiful Karim
(Queensland University of Technology, Australia), Dr Sharmin Tania and Dr
Mostafa Haider (Curtin Law School, Australia), and Prof Matthew Kramer
(Cambridge University) for extending their help to the editors in reviewing
the contributions, and Raihan Rahman Rafid and Naveed Rahman for their
support with editing. This volume could not have been completed without
the constant support and guidance of the editorial team at Routledge, Alison
Kirk and Anna Gallagher.
Ridwanul Hoque
Rokeya Chowdhury
1 The fifty years of Bangladesh’s
constitutional journey
Reflections and hopes
Ridwanul Hoque and Rokeya Chowdhury
Introduction
Bangladesh emerged as an independent nation-state1 on 26 March 1971 when
it unilaterally declared its independence,2 dismembering from what was ‘un-
divided’ Pakistan at the time. Pakistan imposed an unjust, treacherous war on
Bangladesh, then East Pakistan, in the dead of the night of 25 March 1971 to
resist Bangladesh’s independence. The nine-month-long war of independence,
which saw one of the worst genocides in history,3 was won on 16 Decem-
ber 1971. From early 1972, the process of constitution-making was set forth
based on the Proclamation of Independence promulgated by the Constituent
Assembly of Bangladesh on 10 April 1971. The Proclamation acted as the first
constitution of the country.
The Constitution of the People’s Republic of Bangladesh (hereafter ‘the
Constitution’) was adopted on 4 November 1972 by the Constituent Assembly.
The Constitution entered into force on 16 December 1972. Any constitution
holds the nation’s past, aspires to live the present, and promises to build a
thriving future.4 A constitution is better described as a nation’s autobiography,
1 On Bangladesh’s emergence, see, among others, Subrata R Chowdhury, The Genesis of Bangla-
desh (Asia Publishing House 1972); R Sisson and LE Rose, War and Secession: Pakistan, India,
and the Creation of Bangladesh (University of California Press 1990); Srinath Raghavan, 1971:
A Global History of the Creation of Bangladesh (Harvard University Press 2013); Craig Baxter,
Bangladesh: A New Nation in an Old Setting (Westview Press 1984); AMA Muhith, Bangla-
desh: Emergence of a Nation (University Press Limited 1992); Anisuzzaman, Creativity, Reality
and Identity (International Centre for Bengal Studies 1993). See also David Ludden, ‘The
Politics of Independence in Bangladesh’ (27 August–2 September 2011) 46(35) Economic &
Poll. Weekly 79, 81–85.
2 See the Proclamation of Independence of 10 April 1971, issued by the Constituent Assembly,
with efect from 26 March 1971.
3 On the 1971 genocide, see generally Gary J Bass, The Blood Telegram: Nixon, Kissinger, and a
Forgotten Genocide (Knopf Doubleday Publishing Group 2013) and Archer K Blood, The Cruel
Birth of Bangladesh: The Memoirs of an American Diplomat (University Press Limited 2002).
4 See Ridwanul Hoque, ‘Constitutional Identity in Bangladesh: Complexity and Contestations’
in Ran Hirschl and Yaniv Roznai (eds), Deciphering the Genome of Constitutionalism: Essays on
Constitutional Identity in Honor of Gary Jacobsohn (Cambridge University Press 2023).
DOI: 10.4324/9781003276814-1
2 Ridwanul Hoque and Rokeya Chowdhury
it exists ‘in [the] hearts’ of the people before it exists on paper.5 The constitu-
tion grows and develops along with the nation, although it may contain, or
possibly never abandon, certain fundamental traits. The Constitution has so
far received seventeen Amendments, the first one being in 1973 and the latest
in 2019. Of the seventeen Amendments, six (5th to 10th Amendments) were
enacted by pliable parliaments ingeniously constituted by successive military
or military-backed autocratic regimes (1975–1990).
Aims and contribution of the book
This edited volume is a modest venture of presenting the contemporary his-

tory of the Constitution by reflecting on its past, in terms of both notable
achievements and failures, and attempting to chart its future paths. Consist-
ing of fine contributions from both early-career and established scholars, this
book has been a celebratory project, aiming to honour the Constitution’s 50th
year in 2022. It analyses the Constitution’s past, evaluates its development or
regression since 1972, and visualises the future constitutional trajectory. The
central theme of the book, thus, is to gauge the development of the Constitution
through a historical lens, focusing on its foundational goals, performances,
and challenges.
Given the political instability and governance crises in most countries in the
global south, fifty years of a constitution is a milestone indeed. We believe it is
also a significant time to evaluate and appraise the resilience of the Constitu-
tion and constitutional practices. The paucity of international publications on
Bangladesh-focused constitutional and legal research is a hurdle that scholars
aiming to work in the area often face. With this book, we aim to contribute
significantly to the global conversation, especially from the comparative con-
stitutional law and history perspectives. We collectively also seek to forge a
meaningful dialogue among legal professionals and academic scholars in con-
stitutional law both in Bangladesh and beyond, which will help encapsulate
the whole panorama of the constitutional evolution of Bangladesh. In sum,
the book looks back to the history of constitution-making in Bangladesh, to
critically reflect on our present in view of the founding goals, spirits, and aspira-
tions, with an ultimate view to ofering a forward-looking and resilient vision
of constitutionalism in Bangladesh.
The book’s vision, to put in a slogan, can be drawn as Look Back, Evaluate
the Present, and Forge the Way Forward! With these aims in mind, the editors
asked the contributors to analyse their respective subject matter in the light of
Bangladesh’s constitutional founding principles and the framers’ vision, evaluate
the performance of the nation’s basic document in their concerned subject,
5 Albie Sachs, as quoted in Kamal Hossain, ‘Our Constitution and the Goals of Independence’,
The Daily Star (Dhaka, 18 December 2018) <www.thedailystar.net/opinion/politics/news/
our-constitution-and-the-goals-independence-1675189>.
The fifty years of Bangladesh’s constitutional journey 3
and then to envisage the future development in that subject. Through this
book, there has been significant cross-learning between early-career and estab-
lished scholars and practitioners.
Making of the Constitution
War of independence
During the British Raj, the territory that forms today’s Bangladesh was within
the province of Bengal.6 Upon the partition of British India in August 1947
into two countries, India and Pakistan, that territory was reorganised as East
Bengal, which joined Pakistan with ‘legitimate expectation for its autonomy
and self-determination as a province’.7 From 14 August 1947 to 25 March
1971, Bangladesh remained a part of Pakistan, first as East Bengal and then as
East Pakistan. Beginning from the start of its formative years, Pakistan fell into
a deep abyss of constitutional crises, and the process of framing a democratic
constitution was prolonged until 23 March 1956.8 Moreover, the West Paki-
stani leaders adopted the policy of discrimination against the eastern wing in
every aspect of state governance, which was but a colonial legacy.9 In this back-
ground, East Bengal/Pakistan raised the demand for its provincial autonomy
during the period and process of constitution-making.
The period from 1947 to 1971 captures the whole span of Bangladesh’s
struggle for liberation. Three major movements formed the bedrock of what
culminated in Bangladesh’s independence and a new constitutional order.
These were: (i) the language movement of 1948–1952; (ii) the 1954 provin-
cial elections based on the 21-point-programme; and (iii) the mass upsurge
in 1965–1969.10 Briefly, these years were replete with movements for Bang-
ladesh’s autonomy or the right to self-determination based on a democratic
constitutional order.
6 Bengal was one of the eleven provinces. See s 46(1) of the Government of India Act 1935.
7 Ridwanul Hoque, ‘The Founding and Making of Bangladesh’s Constitution’ in Kevin YL
Tan and Ridwanul Hoque (eds), Constitutional Foundings in South Asia (Hart Publishing
2021) 91.
8 The crises had indeed lingered at least until the dismemberment of Bangladesh in 1971. Writ-
ing as early as 1972 on Bangladesh’s independence, Chowdhury saw constitutional crises in
Pakistan in four phases: erosion of parliamentary democracy (1947–1954), advent of mili-
tary oligarchy (1954–1958), political experiments of a military dictator (1958–1969), and the
strategy of deception (1969–1971). See Chowdhury, (n 1) 22–75. Since 1947, Pakistan has
experienced four extra-constitutional military regimes, eleven constitutional arrangements, and
three formal Constitutions of 1956, 1962, and 1973. On crises of Pakistani constitutionalism
from the perspective of their impact on Bangladesh, see GW Choudhury, Constitutional Devel-
opment in Pakistan (Longman 1969).
9 On this see Ayesha Jalal, Democracy and Authoritarianism in South Asia: A Comparative and
Historical Perspective (Cambridge University Press 1995), chapter 1 (‘The colonial legacy in
India and Pakistan’).
10 See for details Hoque (n 7) 95–100.
When the 1956 Constitution of Pakistan denied East Pakistan the full pro-
vincial autonomy that it wanted, the province’s struggle for self-rule contin-
ued. On 8 October 1958, the army chief, General Ayub Khan, took over the
state power and imposed ‘martial law’, abrogated the 1956 Constitution, and
banned all political parties. In 1962, he imposed a new constitution of his
own,11 which East Bengal/Pakistan rejected. Sheikh Mujibur Rahman (not yet
Bangabandhu), the leader of the Awami League (AL), initiated protests and
agitation against unconstitutional moves. When the military ruler withdrew
restrictions on political parties in 1966, Mujib launched the famous six-point
movement for East Pakistan’s full autonomy and a federal democratic consti-
tution for Pakistan.12 Point 1 of the 1966 six-point-programme demanded
that ‘the Constitution should provide for a Federation of Pakistan in its true
sense based on . . . the parliamentary form of government with supremacy of a
Legislature directly elected on the basis of universal adult franchise’ (emphasis
added). Not surprisingly, the Pakistani government viewed the six-point pro-
gramme as a demand for the separation of East Pakistan and threatened stern
actions ‘with the language of weapons’13 against any attempt for dismember-
ment. The Awami League began constitutional mobilisation in support of the
six-point demand. Mujib, along with fifty-four other people, was implicated in
the infamous Agartala Conspiracy Case (1968)14 for conspiring with foreign
enemies (India) for breaking down Pakistan. The commencement of the trial
of the case added fuel to the fire of the ongoing mass movement (1966–1969)
for East Pakistan’s regional autonomy and the end of autocracy. The case
was withdrawn, and Mujib, now Bangabandhu, was released on 22 Febru-
ary 1969.15 Released from jail, Bangabandhu rose to the stature of a national
figure and the leader of the Bangladesh independence movement that was
soon to begin. He continued to demand ‘full autonomy for the Eastern Wing
and representation in the central legislature on the basis of population’,16 and,
when negotiations with the central government failed, submitted a proposal of
amendments to Pakistan’s 1962 Constitution.17
11 On internally imposed constitutions, see Yaniv Roznai, ‘Internally Imposed Constitutions’ in

Richard Albert, Xenophon Contiades, and Alkmene Fotiadou (eds), The Law and Legitimacy
of Imposed Constitutions (Routledge 2019) 58.
12 See M Rashiduzzaman, ‘The Awami League in the Political Development of Pakistan’ (1970)
10(7) Asian Survey 574, 583.
13 S Bhuiyan, P Sands, and NJ Schrijver, ‘An Interview with Kamal Hossain’ in International
Law and Developing Countries (University Press Limited 2014) 17.
14 State vs Sheikh Mujibur Rahman and Others. See Shahida Begum, ‘Agartala Conspiracy Case’
<http://en.banglapedia.org/index.php?title=Agartala_Conspiracy_Case> accessed 12 Sep-
tember 2022.
15 The title of ‘Bangabandhu’, which translates to ‘Friend of Bengal’, was given to him by the
students in a public reception in Dhaka on 23 February 1969 after his release from the prison.
16 Rashiduzzaman (n 12) 585.
17 The amendment proposals were drafted by Kamal Hossain, who would later become the
chairperson of the Constitution Drafting Committee. Another influential person for those
The mass movement (1966–1969) for autonomy led to the fall of President
Ayub Khan, who handed over power to General Yahya Khan, another military
dictator, on 25 March 1969. General Yahya Khan imposed martial law the same
day he assumed power but announced that he would transfer power to elected
representatives and promised to hold general elections on 5 October 1970. Also
promised was a new constitution for Pakistan after the formation of a National
Assembly. The president promulgated the Legal Framework Order (LFO) on
30 March 1970, providing for the rules of elections and the composition of the
National Assembly of Pakistan, allocating 169 seats for East Pakistan.18
The AL began a massive preparation based on its six-point-programme for
the second-ever direct general elections in Pakistan since 1947.19 The general
election was held in December 1970, and the AL won 167 seats out of 313
seats in the National Assembly. Elections were also held for the Provincial
Assembly of East Pakistan, in which the AL won 288 seats out of 310 seats.
Having won a majority of seats in the national parliament, the AL was to form
the government of Pakistan. However, instead of transferring power to the
elected representatives of the winning party, President Yahya Khan followed
his strategy of deception, by postponing the inaugural session of the National
Assembly time and again. When he postponed on 1 March 1971 the scheduled
3 March session, Bangabandhu called for a ‘non-cooperation movement’ from
3–6 March to press the demand for the transfer of power to the Bangladesh
leaders. The Assembly meeting was then rescheduled to 25 March 1971, but
Bangabandhu in his historic ‘7th March Speech’ announced that the transfer
of power to the elected representatives would have to come first. His conclud-
ing part of the ‘7th March Speech’ had an implicit declaration of Bangladesh’s
independence when he sternly announced:
The struggle this time is a struggle for emancipation. The struggle this time
is a struggle for independence.20
Eventually, the Pakistani army commenced an all-out crackdown on the

night of 25 March 1971. Bangabandhu was arrested later that night, but
he managed to transmit the Declaration of Independence in the early
hours of 26 March 1971. Then followed the bloody and most brutal war
of Bangladesh’s independence that ended on 16 December 1971 when the
Pakistani forces surrendered at Dhaka.
draft constitutional proposals was Rehman Sobhan. See Muchkund Dubey, ‘Memoirs of
Three Eminent South Asians: Central Contributions’ (2018) 74(2) India Quarterly 234,
236.
18 Of these 169 seats, 162 were direct seats and 7 were reserved seats for women. See the Legal
Framework Order 1970, schedule 1.
19 First general elections were held in 1962 under the military ruler Ayub Khan.
20 See the 6th Schedule of the Constitution, inserted in 2015 by the 15th Amendment.
Constituent Assembly and the drafting of the Constitution
All elected representatives who won seats in the 1970 elections of the Provincial
and National Assemblies of Pakistan formed themselves into the Constituent
Assembly of Bangladesh and promulgated the Proclamation of Independence
on 10 April 1971 (efective 26 March 1971). The preamble of the Proclama-
tion of Independence (the Proclamation) stated as follows:
We the elected representatives of the people of Bangladesh, as hon-

our-bound by the mandate given to us by the people of Bangladesh
whose will is supreme[,] duly constituted ourselves into a Constituent As-
sembly, and having held mutual consultations, and in order to ensure
for the people of Bangladesh equality, human dignity and social jus-
tice, declare and constitute Bangladesh to be sovereign Peoples’ Republic.
(emphasis added)21
Thus, the Proclamation constituted the new State of Bangladesh, formed a

Constituent Assembly, embraced the concept of popular sovereignty, and laid
down the founding values of equality, human dignity and social justice. It also
legalised Bangladesh’s unilateral declaration of independence that was first
made by Bangabandhu on 26 March 1971.
The Proclamation was, in efect, Bangladesh’s first and interim constitution,22
making provisional arrangements for a ‘provisional government’ (the govern-
ment-in-exile) that was formed at the same time on 10 April 1971.23 The
Proclamation adopted a presidential form of government and declared Bang-
abandhu (then in the Pakistani prison) as president of Bangladesh. It author-
ised the president to ‘exercise all the Executive and Legislative powers of the
Republic’ until ‘a Constitution [was] framed’, appoint a prime minister and
other ministers, summon and adjourn the Constituent Assembly, and ‘do all
other things that may be necessary to give to the people of Bangladesh an
orderly and just Government’ (emphasis added).24
The next constituent instrument was the Provisional Constitution of
Bangladesh Order 1972 (PCO), promulgated under the Proclamation on
11 January 1972 by Bangabandhu in his capacity as president immediately after
his return on 10 January from captivity in Pakistan.25 The PCO transformed the
21 For the Proclamation of Independence, see the 7th Schedule of the Constitution.
22 Emraan Azad, ‘The Proclamation of Independence: The First Constitution of Bangladesh’,
The Daily Star (Dhaka, 10 April 2018) at p. 12. See also M Ekramul Haque, ‘Formation of
the Constitution and the Legal System in Bangladesh: From 1971 to 1972: A Critical Legal
Analysis’ (2016) 27(1) Dhaka Univ Law J 41.
23 The Proclamation, however, was made public on 17 April 1971 when the government took
its oath thereunder.
24 The Proclamation of Independence (n 21).
25 Having been a constituent instrument, the PCO could perhaps more legitimately be enacted
by the Constituent Assembly rather than by the president in his ordinary law-making power.
nature of government into a parliamentary form and made provisions on the ju-
dicial power of the state, which was left unaddressed by the Proclamation.26 The
PCO used for the first time the constitutional name of the country as ‘the People’s
Republic of Bangladesh’.
The ‘Constituent Assembly of Bangladesh’27 (CAB) was called into a two-
day first session on 10 April 1972. It was a 403-member Assembly with eligible
members that were available at the time.28 On its first day, the CAB elected its
speaker and deputy speaker and adopted the Rules of Procedure. On the sec-
ond day, it formed a 34-member Constitution Drafting Committee (CDC),
with Dr Kamal Hossain, then law minister, as chairman.29 The CDC finalised
the draft and approved the Draft Constitution Bill on 11 October 1972 for
laying before the Assembly. The Constitution Bill along with the report of the
CDC was introduced in the CAB on 12 October 1972 in its second session
that ended on 4 November 1972.30 After extensive deliberations31 and debates
(mostly on socialism, secularism, and the unenforceability of social rights), the
Constitution Bill was passed by the CAB on 4 November 1972. The Constitu-
tion came into efect on 16 December 1972.32
Bangladesh’s constitutional journey

Bangladesh’s past constitutional history during the Pakistan era (1947–1971)
was a history of social injustice and the absence of constitutional rule. The
birth of Bangladesh in 1971, therefore, arguably conveys its people’s deep
commitment to constitutionalism and democracy. Ironically, however, except
for brief interludes of constitutional governments, Bangladesh for much of its
26 By default, the then Dacca High Court continued as the country’s Supreme Court from 26
March 1971.
27 This ofcial title of the Assembly was adopted by the Bangladesh Constituent Assembly Order
1972 (BCAO) (P.O. No. 22 of 1972, 23 March 1972), art. 2(a).
28 See further AF Huq, ‘Constitution-Making in Bangladesh’ (1973) 46(1) Pacific Afairs 59,
60. Earlier, article 4 of the PCO 1972 defined the Constituent Assembly as being composed
of the elected representatives unless ‘disqualified by or under any law’. The BCAO 1972 (n
27) provided for the structure, powers, and functions of the CAB. See also the Bangladesh
Constituent Assembly Members (Cessation of Membership) Order 1972 (P.O. No. 23 of
1972, 23 March 1972) that provided for the cessation of membership upon a member’s res-
ignation from, or expulsion by, his political party.
29 There was no ‘opposition party’ in the Assembly, but one opposition member, Mr Suranjit
Sengupta, who was opted as a member of the CDC. Ms Begum Razia Bano, who was elected
from the women’s seats to the National Assembly was the only female member on the commit-
tee. The only indigenous community member of the Assembly, Mr Larma, was not co-opted
in the drafting committee.
30 See Report of the Constitution Drafting Committee, Bangladesh Gazette, Extraordinary,
Thursday, 12 October 1972, Dhaka, at 2615 f.
31 The dates are as follows: 12–14, 19–21, 23–27, and 30–31 October and 1–4 November.
32 Upon commencement of the Constitution, the Constituent Assembly went into automatic
dissolution. See the 4th Schedule of the Constitution, paragraph 1.
history has experienced authoritarian rule.33 Throughout the past years, gov-
ernmental unaccountability and impunity have often prevailed over the norms
and ethos of constitutionalism.
Bangladesh’s constitutional history can be seen through the lens of five peri-
odic phases: the first spans between 1972–1973 (constitutional politics build-
ing); the second between 1973–1975 (democratic decline to constitutional
dismemberment); the third runs from 1975–1990 (extraconstitutional and
autocratic regime); the fourth from 1991–2013 (democratic restoration and
unstable constitutionalism, with the exception of military-backed 2007–2008
caretaker regime); and the fifth from 2014–present day (extreme democratic
decline and constitutional autocracy).
At its founding moment, Bangladesh adopted a four-pronged constitu-
tional identity, based on the principles of (Bangali) nationalism, secularism,
democracy, and socialism. However, the hegemonic Bengali national identity
was flawed and exclusionary.34 During the time of constitution-making, the
demand for a plurinational identity was suppressed by refusing to constitu-
tionally recognise indigenous peoples.35 The four national or constitutional
identity principles have since remained contested.36
Bangladesh began with a parliamentary form of democracy, first through
the PCO of 1972 and then through the Constitution. The first parliamentary
government under the Constitution was formed after the first general elections
in March 1973. Ironically, the parliamentary democracy drastically backpaddled
the following year when an emergency was imposed37 and faced a tragic demise
in January 1975 when an authoritarian, one-party government was established
through the controversial 4th Amendment.38 Probably the landslide victory
of the AL in the first general elections was one of the reasons for the party’s
journey to a one-party dictatorship.39 The 4th Amendment marked a constitu-
tional dismemberment, by destroying many of the founding values of the na-
tion including, most notably, its democratic identity. The Amendment turned
33 Ridwanul Hoque, ‘Constitutionalism and the Judiciary in Bangladesh’ in Sunil Khilnani,

Vikram Raghavan, and Arun K Thiruvengadam (eds), Comparative Constitutionalism in
South Asia (Oxford University Press 2012) 303.
34 See Hoque, ‘Constitutional Identity in Bangladesh’ (n 4).
35 See Ridwanul Hoque, ‘Inclusive Constitutionalism and the Indigenous People of the Chit-
tagong Hill Tracts in Bangladesh’ in (2016) Indian Yearbook of Comparative Law (Oxford
University Press 2017) 217.
36 See Hoque, ‘Constitutional Identity in Bangladesh’ (n 4).
37 Earlier in 1973, the Constitution (Second Amendment) Act 1973 inserted article 141A to
provide a provision on the state of emergency. The 2nd Amendment also amended article 33
to allow the preventive detention of citizens on state security grounds.
38 The Constitution (Fourth Amendment) Act 1975 (25 January 1975). See further JSA Choud-
hury, Bangladesh: Failure of a Parliamentary Government 1973–1975 (Jamshed Foundation
2005).
39 See T Maniruzzaman, ‘Bangladesh: The Unfinished Revolution?’ (1975) 34(4) J of Asian
Studies 891.
the judiciary into a subservient body – judges being removable by the wish of
the president – and suspended many civil and political rights. A nation based
on multi-party democracy metamorphosed into a one-party constitutional dic-
tatorship overnight.40
The constitutional U-turn in 1975 was arguably the beginning, to borrow
from Ghai, of ‘paternalism’ and the ‘absence of constitutionalism’ in the gov-
ernance of the Bangladeshi state.41 Following that fall, it was not too long be-
fore the military intervened. The founding leader of the nation, Bangabandhu
Sheikh Mujibur Rahman, was brutally assassinated along with all family mem-
bers but two daughters on 15 August 1975. The country was put under ‘mar-
tial law’ on 19 August 1975 and the Constitution was suspended.
The next sixteen years (1975–90) would be a history of extra-constitutional
military governments or military-backed civil authoritarian governments. Dur-
ing this period, two military rulers led the two martial law periods, General
Ziaur Rahman and General Hossain M. Ershad. The two generals established
two political parties, the Bangladesh Nationalist Party (BNP) and the Jatiya
Party (JP), respectively. In the late 1980s, there was a wave of popular mobili-
sations for the restoration of democracy and constitutional politics. The second
military ruler since independence, General Ershad resigned as the president on
6 December 1990. Based on an all-party consensus, Ershad appointed Chief
Justice Shahabuddin Ahmed as vice-president. Vice President Justice Ahmed
took the ofce of president after Ershad resigned. Justice Ahmed was the sit-
ting chief justice of the country who agreed to lead the neutral election-time
government (December 1990 to March 1991) on the condition that he would
be allowed to return to the judiciary after the elections.42
In February 1991, general elections were held under the caretaker govern-
ment of Shahabuddin Ahmed, and the country reembraced democracy. The
BNP won the elections and formed the government, while the AL became
the opposition party. The democratic transition inspired hope that democracy
would be consolidated, but that hope soon appeared to be hollow. At the end
of the term of the 1991 BNP government, a major political crisis concerning
the mode of the next general elections was looming. The opposition AL de-
manded that the Constitution be amended to adopt the system of a neutral,
non-party caretaker government (NPCTG) to ensure free and fair elections
40 See Dilara Choudhury, Constitutional Development in Bangladesh: Stresses and Strains (Uni-
versity Press Limited 1995).
41 Yash Ghai, ‘The Theory of the State in the Third World and the Problematics of Constitu-
tionalism’ in D Greenberg et al. (eds), Constitutionalism and Democracy: Transitions in the
Contemporary World (Oxford University Press 1993) 186, 187.
42 See Ridwanul Hoque, Judicial Activism in Bangladesh: A Golden Mean Approach (Cambridge
Scholars Publishing 2011) 95–96. See further Ali Riaz, Bangladesh: A Political History Since
Independence (IB Tauris 2016); and Taj Hashmi, Fifty Years of Bangladesh, 1971–2021: Crises
of Culture, Development, Governance, and Identity (Palgrave Macmillan 2022).
for the transfer of power.43 The ruling party BNP refuted the demand and
proceeded to hold elections under the incumbent government. The AL boy-
cotted the elections held in February 1996. The one-party parliament, thus
constituted, passed the 13th Amendment to constitutionalise the NPCTG sys-
tem and went into dissolution.44 While the NPCTG was the result of a strong
constitutional mobilisation by the AL and its allies and the constitutional de-
sign innovation resolved the months-long crisis, the parties did not have a
chance to deliberate on the details of the design.
The principal function of the NPCTG was to ensure ‘fair and free’ national
elections.45 The NPCTG was to be in power only for ninety days from the
dissolution of one parliament to the formation of the next parliament. The
general elections of the 7th parliament were held in June 1996 under the aus-
pices of the newly installed NPCTG, in which the AL won. Elections are due
every five years. The next general elections for the 8th parliament under the
NPCTG administration were held in 2001, in which the BNP won. A couple
of years before the scheduled 2006 elections, the ruling party BNP adulterated
the NPCTG system by increasing the retiring age of Supreme Court justices to
sixty-seven,46 with the ulterior motive of having the then chief justice (Justice
KM Hasan) to lead the NPCTG after his retirement. According to the now-
repealed article 58C of the Constitution, the most recently retired chief justice
was to be the first choice as head of the NPCTG.
The opposition AL announced that it would not participate in the elec-
tions under Justice KM Hasan’s leadership.47 In October 2006, the ruling and
the opposition parties failed to reach an agreement on the formation of the
soon-to-be incumbent caretaker government. The then president (who was a
nominee of the BNP) took the ofce of chief advisor and formed a caretaker
government. The AL repudiated the NPCTG established and commenced
violent protests and demonstrations.48 As a result, another irreconcilable po-
litical crisis emerged. At this juncture, the military ingeniously intervened by
forcing the president to resign as the chief advisor and form a new caretaker
43 M Rashiduzzaman, ‘Political Unrest and Democracy in Bangladesh’ (1997) 37(3) Asian Sur-
vey 254.
44 The Constitution (Thirteenth Amendment) Act 1996.
45 See, for details, SZ Khan, The Politics and Law of Democratic Transition: Caretaker Govern-
ment in Bangladesh (Routledge 2017); N Ahmed, Non-Party Caretaker Government in Bang-
ladesh: Experience and Prospect (University Press Limited 2004); and H Zafarullah and MY
Akhter, ‘Non-Political Caretaker Administrations and Democratic Elections in Bangladesh:
An Assessment’ (2000) 35(3) Govt and Opposition 345.
46 Via the Constitution (Fourteenth Amendment) Act 2004.
47 Justice Hasan was reportedly an ofce-bearer with the BNP before his elevation to the High
Court Division as a judge. Also, he was the brother-in-law of one of the alleged killers of
Bangabandhu.
48 Ridwanul Hoque, ‘The Judicialization of Politics in Bangladesh: Legitimacy, and Conse-
quences’ in Mark Tushnet and Madhav Khosla (eds), Unstable Constitutionalism: Law and
Politics in South Asia (Cambridge University Press 2015) 261.
government with advisors recommended by them. The president was also

compelled to declare a state of emergency in January 2007. The elections that
were due in December 2006 were postponed. The 2007 NPCTG remained
in power for two years instead of their constitutional term of three months.
This was an extra-constitutional but probably the only desired solution in the
context of the intractable constitutional deadlock that crippled the nation. The
next general elections were held in December 2008 under the military-backed
NPCTG, in which the AL won.49
The NPCTG system, thus, revealed some generic defects. The AL did not
announce its position regarding the NPCTG in its 2008 election manifesto.
Nor did the 2009 AL government publicly show any apathy against the sys-
tem. It, however, probably had the plan to abolish the NPCTG.
In May 2010, by a 4:3 ‘short order’, the Supreme Court’s Appellate
Division in Abdul Mannan Khan v Bangladesh50 declared the 13th Amend-
ment of the Constitution unconstitutional but controversially held that
the next two general elections could be held under the NPCTG system.51
The AL government took advantage of the short order in the 13th Amend-
ment Case and rushed towards abolishing the NPCTG system via the 15th
Amendment of 2011. This Amendment triggered another constitutional
crisis. Now the opposition BNP and its allies declared that they would not
participate in the ensuing general elections unless the NPCTG system was
reintroduced.
The ruling party continued to assert that every election would be held
under the incumbent government, as in other ‘developed’ democracies.
The next general elections for the 10th parliament, held in January 2014,
were virtually one-party elections. The main opposition BNP and its allies
boycotted the elections. Unsurprisingly, the ruling party had won it all,
while 153 out of 300 general parliamentary seats were elected unopposed.
Thus, there was no opposition in the 10th parliament formed after the 2014
elections.52
The next general elections, held on 30 December 2018, were contested by
major political parties, but the fairness and democratic credibility of the elec-
tions remain widely questioned. The ruling AL and its ally JP had won 293 out
of 300 seats. The major opposition BNP, which had won competitive elections
twice before (in 1991 and 2001), and its ally secured only seven seats.53 There
are reports that the 11th parliamentary elections were anything but free, fair,
49 See Hoque, ibid.

50 (2012) 64 DLR (AD) 1.
51 See further Chapters 6 and 10 in this volume. Abdul Mannan Khan was an appeal from a
2004 decision by the HCD in M Saleem Ullah v Bangladesh (2005) 57 DLR (HCD) 171,
which endorsed the NPCTG as constitutional.
52 See Hoque, ‘Judicialization of Politics’ (n 48).
53 See Hoque, ‘The Founding and Making of Bangladesh’s Constitution’ (n 7).
and competitive.54 Like the 10th parliament, the current 11th parliament does
not have any opposition party in any real sense of the term.
These recent developments portray a strong sign of Bangladesh’s entry into
a hybrid regime of electoral autocracy.
Constitutional achievements and innovations
Democracy and caretaker government system
One notable achievement of the Constitution is its commitment to repre-

sentative democracy, although whether democracy has been consolidated
or not is a diferent question. Following the country’s re-embracement of
democracy in 1991, the competing political parties agreed to restore the
parliamentary form of democracy through the 12th Amendment to the Con-
stitution.55 This was a transition from the presidentialism of the 1975–1990
era to parliamentarianism.
In furtherance of democracy and with a view to ensuring free and fair elec-
tions as the means of transfer of power from one government to another, the
nation adopted the NPCTG system as a constitutional design innovation to
check incumbency advantage.56 If history is any record, the successive incum-
bent governments have always manipulated constitutional tools and admin-
istrative means to influence and corrupt the electoral system in Bangladesh.
Given the confrontational politics in Bangladesh, political scientists and con-
stitutionalists have argued that free, fair, and competitive elections are almost
impossible under any incumbent government. The most credible general elec-
tions in Bangladesh were those held in 1991, 1996, 2001, and 2008. All these
elections were held under the special caretaker government of 1991 or the
NPCTG established by the 13th Amendment. The role and significance of a
constitutional system of the NPCTG during elections can be best measured
by reference to the consequences of the abolition of the system in 2011. Its
abolition has ushered in an electoral system enslaved by the incumbent gov-
ernment, and the country has entered the age of electoral autocracy.
Beyond achievements coming through constitutional politics, there have
been two landmark constitutional achievements, spearheaded by the judiciary:
the concept of public interest litigation (PIL) and the idea of ‘unconstitutional
54 See, among others, Sumit Ganguly, ‘The World Should Be Watching Bangladesh’s Elec-
tion Debacle’, Foreign Policy (7 January 2019) <https://foreignpolicy.com/2019/01/07/
the-world-should-be-watching-bangladeshs-election-debacle-sheikh-hasina/>.
55 See further Ahmed, Chapter 10 in this volume. See also MA Hakim, The Changing Forms
of Government in Bangladesh: The Transition to Parliamentary System in 1991, in Perspective
(Bangladesh Institute of Parliamentary Studies 2000).
56 On incumbency advantage, see Adam Abede, ‘Taming the Incumbency Advantage: Innova-
tive Constitutional Designs from the “South”’ International IDEA Discussion Paper 2/2021
(International Institute for Democracy and Electoral Assistance 2021).
constitutional amendment’ (UCA), which is better known as the basic struc-

ture doctrine (BSD). These two developments, however, have their downsides.
Being the product of judicial decisions, they are quite susceptible to misuse
both by the judiciary and the political branches.57 This book does not cover
these oft-analysed concepts in individual chapters, but they have been points
of reference in several chapters.
Public Interest Litigation (PIL)58
The concept of PIL was first adopted by the Appellate Division of the Su-
preme Court (SCAD) in Dr Mohiuddin Farooque v Bangladesh,59 in which
case an environmental organisation, BELA, was granted standing to challenge
a flood action project (FAP 21) of the government. Article 102(1) of the
Constitution provides that the High Court Division (HCD) of the Supreme
Court can issue orders and writs in a judicial review petition made by ‘any
person aggrieved’. When BELA challenged FAP 21 on constitutional grounds,
the HCD rejected the petition because the petitioner was not a ‘person ag-
grieved’. On appeal, the SCAD held that any person genuinely espousing the
interest of the public can bring a judicial review action. The court reasoned
that interpreting the scope of the phrase ‘any person aggrieved’ otherwise
would be against the intention of the framers or the purposes of the Constitu-
tion including social justice and the rule of law.
Following the hard-earned entrenchment of public interest litigation into
the country’s legal system in 1996,60 PIL has been increasingly used arguably
as a tool of constitutionalism. The PIL has delivered normative social impacts,
in addition to holding itself out as a mechanism for executive accountability.
It also has transformed the authority of the Supreme Court as the guardian of
the Constitution.
Initially, PIL’s focus was on collective rights and environmental justice.
PIL has, subsequently, extended its folder to cover a wide array of issues such
as child health, protection of the homeless (slum-dwellers),61 preservation of
public parks or rivers, access to emergency medical support, and public health
57 See, e.g., Manoj Mate, ‘Two Paths to Judicial Power: The Basic Structure Doctrine and Public
Interest Litigation in Comparative Perspective’ (2010) 12 San Diego Int’l LJ 175.
58 On PIL generally, see N Ahmed, Public Interest Litigation in Bangladesh: Constitutional Issues
and Remedies (Bangladesh Legal Aid and Services Trust 1999); R Hoque, ‘Taking Justice
Seriously: Judicial Public Interest and Constitutional Activism in Bangladesh’ (2006) 15(4)
Contemporary South Asia 399.
59 (1997) 17 BLD (AD) 1.
60 Unlike in India, the PIL movement in Bangladesh had not been steered by the judges. Rather,
the activist lawyers needed to work hard to make the judiciary break away from the colonial
jurisprudential inhibitions.
61 On this, now see SMA Naznin, Forced Slum Evictions in Bangladesh: The Role of Structural In-
junction as an Appropriate Judicial Remedy (Unpublished PhD Thesis, Macquarie University
2019).
and hygiene. Yet, these areas fall under the rubric of ‘social justice’, or the
common causes of the public in the sense of a social right.62 Environmental
justice seems to have drawn the Court’s most intensive attention in PIL chal-
lenges. In a long series of cases, the Court has proactively indulged in exercises
directed towards the protection of the environment, mostly by issuing innova-
tive remedies such as by requiring the concerned government agency to make
rolling reports of progress or by binding the government with specific positive
obligations or by framing ‘obligatory’ guidelines. For example, a court action
resulted in a string of government actions improving the conditions of four
exceedingly polluted rivers surrounding Dhaka,63 with the court more recently
recognising the legal personhood of rivers.64
Beginning from the early to mid-2000s, PIL cases of a mixed genre, com-
bining civic/political rights claims and constitutional principles, began to be
litigated. The Court acted in PIL cases, for example, to protect judicial in-
dependence, promote electoral political culture, ensure the participation of
the people in democracy, stop police brutalities, and combat sexual harass-
ment at workplaces and educational institutions. It also acted proactively to
check corruption by state agencies. In a high-profile PIL, for example, the
Court invalidated the governmental permission granted to a foreign private
company to construct a container terminal at the Chittagong Port on the
ground of non-transparency in public decision-making.65 In other notable
actions, the Court invalidated a local government law for breaching the prin-
ciple of representative governance, directed the government to establish spe-
cial courts in the Chittagong Hill Tracts region for the protection of women
and children,66 and struck down a provision of the mandatory death penalty
for a specific form of aggravated murder.67 Judicial activism in such cases is
seemingly motivated by the court’s sense of duty to uphold constitutional
supremacy.
There have been concerns that PIL has been abused by non-genuine public
interest litigants for personal or political gains. There is a long list of instances
where PILs were filed for purely political reasons or to litigate a political issue
62 In its formative years, PIL focused on the goal of social justice via the means of enforcing
statutory obligations of the government or constitutional rights of citizens such as the right
to life. See, for example, Rabia Bhuiyan, MP v Secretary, Ministry of LGRD (2007) 59 DLR
(AD) 176 (establishing the right to safe drinking water).
63 Human Rights and Peace for Bangladesh v Bangladesh, WP No. 3503 of 2009, High Court
Division, judgment 25 June 2009 (directing the authorities to declare those rivers as ecologi-
cally critical areas and to form a river conservation commission).
64 Nishat Jute Mills Limited v Human Rights and Peace for Bangladesh, CPLA 3039 of 2019,
Appellate Division, judgment 17 February 2020.
65 Engineer Mahmud-ul Islam v Bangladesh (2003) 23 BLD (HCD) 80.
66 See BLAST v Secretary, Ministry of Law, Justice and Parliamentary Afairs (2009) 61 DLR
(HCD) 109.
67 See BLAST v Bangladesh (2015) 1 SCOB (AD) 1 (endorsing BLAST v Bangladesh (2010) 30
BLD (HCD) 194).
in the garb of a legal matter. A case filed by a politician in ‘the public interest’,
for example, ended up in the de-registration of the Jamaat-e-Islami Bangla-
desh party.68 The Court dismissed many abusive PILs, while in other cases it
was inclined to intervene in or meddle with politics. In the 13th Amendment
Case, for example, the SCAD struck down the NPCTG system as illegal and
undemocratic, a decision which instead of solving the problem turned out to be
a problem itself. Also, the Court in PIL cases has been increasingly undertak-
ing law-making or policy-making exercises. In BNWLA v Bangladesh (2009),69
for example, the Court issued detailed guidelines ‘in the nature of law’ in the
context of absence of laws efectively to prevent and punish sexual harassment
of women. While the intervention for the protection of women from sexual
harassment is plausible, it was not quite right for the Court to engage in such a
direct legislative exercise.70 This has been a major shift in the Court’s jurispru-
dence in the post-emergency (2007–2008) period marked by a judicial attempt
to regain public confidence and rebuild its image.
With the decline in democratic practices, there has been a noticeable de-
cline in legal and judicial activism via PIL. However, an important develop-
ment in this field deserves cautious acclamation, which is the Court’s recent
willingness to award compensation under its judicial review power.71 Under
article 102(1) of the Constitution, the HCD in a judicial review can grant
any appropriate remedy to enforce constitutional rights. Compensation for
the violation of fundamental rights by state agencies was first awarded by the
HCD in Bilkis Akhter Hossain v Bangladesh (1997).72 The Bilkis Akhter rea-
soning was later afrmed by the SCAD, which, however, overruled the com-
pensation decision.73 The SCAD held that compensation under article 102
could be awarded in case of any ‘gross’ violation of constitutional rights only.
Despite this decision, however, the HCD on several occasions entertained
68 See Maulana Syed Rezaul Haque Chadpuri v Bangladesh Jamaat-e-Islami (2014) 66 DLR
(HCD) 14.
69 (2009) BLD (HCD) 415.
70 The style and language of the guidelines were somewhat identical to statutory instruments.
On this tendency of judicial overreach, see MR Islam, ‘Dissecting Quasi-Legislative Judicial
Directives of the Supreme Court of Bangladesh’ in Po Jen Yap (ed), Constitutional Remedies
in Asia (Routledge 2019) 138; ‘Judges as Legislators: Benevolent Exercise of Powers by the
Higher Judiciary in Bangladesh with Not So Benevolent Consequences’ (2016) 16(2) Oxford
U Commonwealth LJ 219.
71 See, for details, Ridwanul Hoque, ‘Public Law Compensation in Bangladesh: Looking Within
and Beyond’ (2010) 1(2) J of L and Development 1; and Taqbir Huda, ‘Fundamental Rights
in Search of Constitutional Remedies: The Emergence of Public Law Compensation in Bang-
ladesh’ (2021) 21(2) Australian J of Asian L 27.
72 (1997) 17 BLD (HCD) 395. In a 2003 PIL decision in BLAST v Bangladesh (2003) 55 DLR
(HCD) 363, the Court for the first time recognised its authority to award public law compen-
sation for violation of human rights but did not grant compensation.
73 Bangladesh v Nurul Amin (2015) 67 DLR (AD) 352.
ordinary tort claims in the guise of PIL, awarding compensation in what are
civil wrongs and not cases of gross violation of fundamental rights.74
In the 2015 case of CCB Foundation v Bangladesh,75 for example, the HCD
awarded monetary compensation of BDT 2 million in favour of the family of
a 4-year-old boy who met a tragic death in December 2014 in Dhaka when
he fell into an abandoned deep tube–well shaft belonging to a government
department.76 In this and other cases, the Court did not explain how a gross
violation of human rights occurred due to negligence or inefciency of gov-
ernment agencies. Notwithstanding jurisprudential shortcomings, therefore,
the judicial practice of enacting compensatory justice in PILs has the potential
of holding the administration to account for their constitutional or public law
breaches.
The Basic Structure Doctrine (BSD)
The BSD or the concept of UCA is based on the proposition that any parlia-
ment’s power to amend the constitution is subject to limits in the constitu-
tion. The limits can be expressly prescribed in the text (which is the case
in Bangladesh since 2011)77 or implicitly built into the constitution. In the
latter case, it is the judiciary that undertakes the task of discovering the im-
plicit limits and determining the constitutionality of any given amendment.
The Indian Supreme Court authoritatively adopted the BSD in Kesavananda
Bharati v State of Kerala (1973),78 where it said that a constitutional amend-
ment that breaches one or more basic structural features of the constitution
is liable to be invalidated. The decision discarded the hitherto dilemma about
the extent of implicit limits on parliament’s amendment power that was being
tested in India since the mid-1960s.
The Supreme Court of Bangladesh subscribed to the idea in its 1989 deci-
sion in Anwar Hossain Chowdhury v Bangladesh (hereinafter ‘the 8th Amend-
ment Case’).79 In the 8th Amendment Case, the SCAD had struck down part of
the 8th Amendment80 that difused the HCD into several regional permanent
74 For a similar trend in other South Asian jurisdictions, see Rehan Abeyratne, ‘Ordinary Wrongs
as Constitutional Rights: The Public Law Model of Torts in South Asia’ (2018) 54 Texas Int’l
LJ 1.
75 (2017) 5 CLR (HCD) 278 (full judgment in October 2017).
76 See Ridwanul Hoque and Sharowat Shamin, ‘Bangladesh: The State of Liberal Democracy’,
in Richard Albert (eds), (2017) Global Review of Constitutional Law (Boston College Clough
Center For the Study of Constitutional Democracy 2018).
77 Now see article 7B (inserted via the 15th Amendment of 2011). On Bangladesh’s eternity
clause (art. 7B) see Ridwanul Hoque, ‘Eternal Provisions in the Constitution of Bangladesh:
A Constitution Once and for All?’ in R Albert and BE Oder (eds), An Unconstitutional Con-
stitution?: Unamendability in Constitutional Democracies (Springer 2018).
78 AIR 1973 SC 1461 (a 7 to 6 decision).
79 (1989) BLD (Special) 1, Justice Afzal dissenting.
80 The other part made Islam the state religion. On the legality of the state religion part of
the 8th Amendment, see Shah Alam, ‘The State-Religion Amendment to the Constitution
of Bangladesh: A Critique’ (1991) 24(2) Verfassung und Recht in Übersee 209; Ridwanul
branches.81 Its reasoning was that the 8th Amendment violated an important
basic feature of the Constitution: the unitary character of the state. Later, in
2010 and 2011, the SCAD conclusively declared unconstitutional the 5th, the
7th, and the 13th Amendments. Further later, in 2017, it invalidated the 16th
Amendment, which is currently on a review hearing.82 In regard to other con-
stitutional amendments that confronted judicial scrutiny, the Court either en-
dorsed their constitutionality83 or lent them some legitimacy but not necessarily
without questioning their legality.84
While the BSD can be instrumental for constitutionalism and constitutional
durability, it can also serve as a tool for the subversion of constitutionalism.
Scholars are skeptical of the doctrine’s utility because of its ‘intrinsic’ uncer-
tainty85 or the ability to amend the constitution via the judiciary.86
As seen in the constitutional amendment challenges, the BSD has been a
vehicle for the politicisation of the judiciary. On the other hand, the Court
has mostly used the doctrine for the judicialisation of pure and mega political
issues. In the 13th Amendment Case, for example, the SCAD, by invalidating
the Amendment, had done ‘the groundwork to enable the political branches
to shun the NPCTG system arbitrarily’ via the 15th Amendment.87 The ruling
Hoque, ‘Constitutional Challenge to the State Religion Status of Islam in Bangladesh: Back
to Square One?’ (27 May 2016) Int’l J. Const. L. Blog <www.iconnectblog.com/2016/05/
islam-in-bangladesh> (the HCD refused to hear the challenge on the flimsy ground of the
petitioner’s lack of standing).
81 The literature on the Bangladeshi perspective includes the following: ME Haque, ‘The Con-
cept of “Basic Structure”: A Constitutional Perspective from Bangladesh’ (2005) 16(2) Dhaka
Univ Studies – Part F 123; MJU Talukder and MJA Chowdhury, ‘Determining the Province
of Judicial Review: A Re-Evaluation of “Basic Structure” of the Constitution of Bangladesh’
(2008) 2(2) Metropolitan U Journal 161; S Khan, ‘Leviathan and the Supreme Court: An
Essay on the “Basic Structure” Doctrine’ (2011) 2 Stamford J of L 89; R Chowdhury, ‘The
Doctrine of Basic Structure in Bangladesh: From “Calf-path” to Matryoshka Dolls’ (2017) 14
Bangladesh J of L 43; R Hoque, ‘Implicit Unamendability in Asia: The Core of the Case for
the Basic Structure Doctrine’ (2022) 4 Keele Law Rev 90; and K Ahmed, ‘Revisiting Judicial
Review of Constitutional Amendments in Bangladesh: Article 7B, The Asaduzzaman Case,
and the Fall of the Basic Structure Doctrine’ (2023) 56(2) Israel L Rev 1.
82 See Bangladesh v Asaduzzaman Siddiqui (2017) CLR (AD) (Spl) 1, discussed further later.
83 In some cases, the SCAD declined to invalidate amendments that increased the number of
reserved women’s seats in parliament. See Fazle Rabbi v Election Commission (1992) 44 DLR
(HCD) 14; Dr Ahmed Hossain v Bangladesh (1992) 44 DLR (AD) 109; and Farida Akhter v
Bangladesh (2007) 15 BLT (AD) 206.
84 In a 1981 curious decision, the HCD found the 2nd and 4th Amendments to be violative
of ‘essential features of the Constitution’ but refused to invalidate them. See Hamidul Huq
Chowdhury v Bangladesh (1981) 33 DLR (HCD) 381. On appeal, the SCAD eschewed the
question altogether in Hamidul Huq Chowdhury v Bangladesh (1982) 34 DLR (AD) 190.
85 Nafiz Ahmed, ‘The Intrinsically Uncertain Doctrine of Basic Structure’ (2022) 14(2) Wash-
ington Univ Jurisprudence Rev 309.
86 Chowdhury, ‘The Doctrine of Basic Structure in Bangladesh’ (n 81). See also Khan, ‘Levia-
than and the Supreme Court’ (n 81).
87 Ridwanul Hoque, ‘The Politics of Unconstitutional Amendments in Bangladesh’ in Rehan
Abeyratne and Ngoc Son Bui (eds), The Politics of Unconstitutional Amendments in Asia
(Routledge 2022) 228.
party abused the BSD to gain an incumbency advantage by abolishing the

NPCTG system.88 There was arguably deeper politics in inducing the judiciary
to rule against the NPCTG. The 13th Amendment decision was a sharply split
decision of 4 to 3 judges, with the dissenting judges finding no unconstitu-
tionality in the country-specific institution of ‘unelected’ NPCTG.89 The then
chief justice allegedly expedited the hearing and delivered the verdict only
eight days before his retirement on 18 May 2011.90 All the three judges who
concurred with the chief justice eventually became Chief Justices of Bangla-
desh.91 By contrast, two of the three dissenting judges, despite each being the
most senior judge at the time, were not appointed as chief justice.92
Judicial politics via the use of the BSD is glaringly visible in Bangladesh
v Asaduzzaman Siddiqui (2017) (the 16th Amendment Case).93 In this PIL
case, the SCAD unanimously declared unconstitutional the 16th Amendment
that, in fact, restored an original provision of the Constitution (article 96(2))
providing for the removal of Supreme Court judges by parliament on the
ground of proven misconduct. The Court treated the 16th Amendment like
any other amendment but provided no or extremely weak reasoning on how
the restored article 96(2), which existed in the founding Constitution, could
be unconstitutional.94 This was a consequential decision. Because of a com-
ment that the then chief justice made in his opinion, Justice Sinha was forced
to leave the country and then resign when he was travelling overseas. Moreo-
ver, the government heavily relied on political considerations when appointing
judges in the SCAD after the 16th Amendment decision.
The principles of constitutional supremacy and popular sovereignty require
the judges to apply the doctrine of UCA extremely cautiously and rarely, and
only for the cause of preserving the constitutional identity. As recent cases
88 See further AA Khan, ‘The Politics of Constitutional Amendments in Bangladesh: The Case
of the Non-Political Caretaker Government’ (2015) 9 Int’l Rev of L 1, 12.
89 As Justice M Imman Ali in dissent observed, ‘the Thirteenth Amendment was neither illegal
nor ultra vires the Constitution and does not destroy any [of its] basic structures.’ See Abdul
Mannan Khan (n 50) 472.
90 Hoque, ‘The Politics of Unconstitutional Amendments’ (n 87) 223.
91 They are Justices Md Mozammel Hossain, SK Sinha, and Syed Mahmud Hossain.
92 The dissenting judges superseded are Justice Wahhab Mia and Justice M Imman Ali.
93 (2017) CLR (AD) (Spl) 1, endorsing the HCD’s opinion in Asaduzzaman Siddiqui v Bangla-
desh (2016) Apex Law Reports (HCD) 161. See further R Hoque, ‘Can the Court Invalidate
an Original Provision of the Constitution?’ (2016) 2(1) Univ of Asia Pacific J of L and Policy
13; MJA Chowdhury and NK Saha, ‘Advocate Asaduzzaman Siddiqui v. Bangladesh: Bangla-
desh’s Dilemma with Judges’ Impeachment’ (2017) 3(3) Comp Const & Admin L Quarterly
7.
94 For an analysis supportive of the SCAD’s decision, see Po Jen Yap and Rehan Abeyratne, ‘Ju-
dicial Self-Dealing and Unconstitutional Constitutional Amendments in South Asia’ (2021)
19(1) Int’l J of Con Law 127. For a diferent view see MA Sayeed and Lima Aktar, ‘“Constitu-
tional Dismemberment” and the Problem of Pragmatism in Siddiqui: A Reply to Po Jen Yap
and Rehan Abeyratne’ (2022) 20(2) Int’l J of Con Law 890.
show, there is an increasing judicial tendency to misapply the BSD or the doc-
trine of UCA in Bangladesh.
Constitutional failures and challenges

The Constitution proclaims democracy as the mode of governance, emphati-
cally declares the supremacy of the Constitution, mandates the holding of free
and fair periodic elections, ensures the separation of powers and judicial review
of laws and state actions, guarantees judicial independence, and enumerates
civil rights. Despite these ideals of constitutionalism, however, the political
and constitutional institutions in Bangladesh remain weak, which is evident,
for example, in the existence of a poorly functioning parliament,95 dominated
by an omnipotent, self-serving executive. As several chapters in this volume
will underline, the instability in constitutional politics, democratic backsliding
in recent times, the absence of judicial independence, and the lack of inde-
pendent fourth-estate institutions such as a functioning election commission
or a strong human rights commission, are some failures of the Bangladeshi
constitutional order.
While the adoption of PIL and the BSD has empowered the judiciary to
assert its authority and agency, both the constitutional text and practice have
failed to ensure a truly independent judiciary. There has been an increasing
trend of politicisation of the judiciary. Despite the enabling constitutional
clause, parliament has not yet enacted legislation determining the criteria for
appointments to the Supreme Court. As a result, Supreme Court judges con-
tinue to be appointed on political considerations.96 Successive governments
have indulged in various overt and ingenious means to manipulate the judi-
ciary.97 In particular, the wide and non-transparent political discretion under
article 95 of the Constitution in appointing judges to the Appellate Division
and in appointing the chief justice has been the vehicle for the politicisation
of the judiciary.
As the previous narrative testifies, constitutionalism or democracy has never
become stable. The biggest constitutional failure seems to be the absence of
an institutionalised system of free and fair elections. The existence of an Elec-
tion Commission as a constitutional body is far less than enough to ensure free
and fair elections. The power and leverages at the hands of the ruling party to
influence the commission as well as to seriously corrupt the electoral system
are the factors behind the said constitutional failure. All general elections held
under the incumbent government have been severely unfair, exclusionary, and
95 Nizam Ahmed, The Parliament of Bangladesh (Ashgate 2002).

96 On the appointment process in the Supreme Court, see generally Bangladesh v M Idrisur Rah-
man (1999) 19 BLD (AD) 203.
97 See Hoque, Judicial Activism in Bangladesh (n 42) 210.
rigged.98 By contrast, general elections under caretaker governments (1991,

1996, 2001, 2008) were fairer. Logically, therefore, the unilateral abolition of
the NPCTG system via the 15th Amendment in 2011 is a notable failure.99
Beyond the free, fair, and multi-party elections, the most important element
of governance by consent has been largely absent from the political landscape.
This can be exemplified by the tendency of the ruling parties with a convenient
majority in parliament to amend the Constitution to serve their narrow and
anti-democratic interests.100 The successive ruling parties used constitutional
amendments to exclude the opposition, realise incumbency advantage, and
deepen the political divide that already exists in the confrontational politics of
the two major parties, the AL and the BNP.101 For example, the current ruling
party (the AL) enacted the 15th Amendment in 2011 to abolish the system
of NPCTG, which was brought to the Constitution in fulfillment of its own
demand when the party was in opposition.102
Another example of the enormous power at the hands of a majority gov-
ernment to influence or corrupt elections is the provision of holding elec-
tions within the period of ninety days preceding the expiry of the term of
parliament.103 This rule means that the members of parliament continue to
remain the members during the time of general elections; because of this,
they continue to enjoy undue privileges and powers over the other candi-
dates. This provision is arguably an antithesis to the concept of a free and
fair election.
There is yet another example of abusive constitutionalism, which is the in-
sertion in the Constitution of an eternity clause, article 7B, in 2011. Because
of article 7B, a long line of provisions including, for example, all fundamental
rights provisions (articles 26 to 47A) and any provisions relating to the ‘basic
structures of the Constitution’ have been made unamendable. Such a broad
eternity clause, which holds tight the hands of future generations as regards
their power to amend the Constitution is arguably unconstitutional.
98 A somewhat exceptional case was the first general election in 1973, although that election
too had problems of fairness. The unfairness was limited because there was not any strong
opposition party at the time and, hence, the incumbent government did not feel it necessary
to corrupt the election. See Bernard Weinraub, Bangladesh Chief Winning by Big Edge, The
New York Times (8 March 1973) <www.nytimes.com/1973/03/08/archives/bangladesh-
chief-winning-by-big-edge-11-seats-uncontested.html>. See further Hashmi (n 42) 138,
noting that there were ‘massive irregularities’ in the 1973 elections.
99 That the 15th Amendment was exclusionary and sufered a problem of legitimacy is evident
in the fact that the Bill passed the House amidst an opposition boycott by a 291–1 vote.
100 See further See Ridwanul Hoque, ‘Deconstructing Public Participation and Deliberation in
Constitutional Amendment in Bangladesh’ (2021) 21 (2) Australian J of Asian L 7.
101 Hoque, The Politics of Unconstitutional Amendments (n 87).
102 Hoque, ibid.
103 The Constitution, article 123(3).
Scope of the book: reflections and hopes

Being a celebratory volume, it was particularly challenging for the editors to
choose the chapters covering the whole breadth of Bangladesh’s constitutional
development. Given that challenge, the book’s scope is innovative in that it
does not include standalone chapters on oft-discussed areas such as judicial in-
dependence, constitutional basic structure doctrine, and public interest litiga-
tion. The volume contains fourteen chapters. Except Chapter 1 and Chapter
14, other chapters are divided into four parts.
Part 1 has three chapters. Chapter 2 presents a jurisprudential analysis of
the emergence of Bangladesh’s constitutional order and legal system. Here,
Nafiz Ahmed analyses Bangladesh’s emergence through the 1971 revolution
and the antecedent ‘extra-legal factors’, as an autochthonous constitutional
system. Ahmed claims that the emergence of Bangladesh’s legal system can be
understood better in light of HLA Hart’s theory of the rule of recognition –
the emerged system being ‘the new rule of recognition’. Chapter 3, by Kawser
Ahmed, focuses on the legal hierarchy in the national legal system, analysed
from the point of view of domestic (Constitution, local laws, and customs)
and international laws. Based on an examination of the Constituent Assem-
bly debates, text of the Constitution, and judicial decisions, among others,
Ahmed seeks to answer the question of the status of international law in the
Bangladeshi legal system and concludes that the constitutional design leaves
no doubt that, for implementation, international law is a separate system to
the domestic law.
In Chapter 4, Muhammad Rezaur Rahman profers a history of the founda-
tional value of secularism. The chapter’s particular focus is on the coexistence
of, or the conflict between, secularism and Islam. Secularism remained absent
from the Constitution from 1975 to 2011, while Islam was introduced as the
state religion in 1988. Since the 15th Amendment in 2011, both secularism
and the state religion have been sitting together within the same democratic
constitution. Rahman examines this ‘constitutional innovation’ from politico-
historical and theoretical perspectives and makes a call for a new discourse to
address the unresolved issues of national identity, secularism, and the role of
religions in Bangladeshi society.
Part II of the book (Chapters 5 to 7) covers the judicial role in the con-
stitutional dispensation, presenting such matters as the judicial contribution
to the rule of law, judicial policy-making, and the role of judicial review in
furthering constitutional goals including the separation of powers. Written by
the Hon Justice Syed Refaat Ahmed, Chapter 5 is an autobiographical and,
hence, unconventional chapter on the concept of rule of law in Bangladeshi
constitutionalism. Justice Ahmed in his usual, critical style of scholarship pre-
sents the most insightful analyses of major rule-of-law notions such as judicial
independence, equality, justice, and the principle of law. He believes that the
constant renewal of constitutional content establishes the Constitution as a
living and evolving social contract and that the judiciary can play a central role
in such constitutional growth, to achieve the higher goal of rule of law. Justice
Ahmed powerfully concludes that how best constitutional renewals and living-
ness are achieved ‘depends both on judicial perceptions of rule of law and the
position of independence and autonomy of’ judicial actions.
In Chapter 6, Md Abdul Halim analyses judicial policy-making in light of
the separation of powers. For Halim, the indeterminacy of many provisions of
the Constitution presents the judges with a duty to read specific meanings into
them. This interpretive function entails judicial policy-making. He argues that
policy-making by the Supreme Court has rarely been in line with the principles
of constitutionalism.
Chapter 7 by Chowdhury Ishrak Ahmed Siddiky is about judicial review,
considered vis-à-vis the separation of powers. While Siddiky is generally ap-
preciative of the Supreme Court’s authority via the judicial review power, he
is critical of the Court’s role in times of emergencies, military dictatorships, or
difcult or over-majoritarian political environments. Based on case laws, espe-
cially some constitutional amendment decisions, he thinks that the judiciary
in some cases either breached the separation of powers or ‘consciously’ stayed
above the fray even when the Constitution was desecrated.
Part III sheds light on the authority of the Constitution, by examining the
executive role and performance; the role and contribution of parliament, po-
litical parties and their constitutional contributions or failures; and the instru-
mentality of judicial review as a separation-of-powers tool. Chapter 8 by Md
Lokman Hossain introduces this part by taking up the issue of constitutional
limits and executive accountability. Since the formative years of the Constitu-
tion, executive accountability has been one of the most challenging goals to
attain. Hossain forcefully argues that the Bangladeshi constitutional design
does not reflect a meaningful separation or balance of powers. For him, the re-
lationship between the executive and the legislature is not truly a Westminster
form and ‘the founding dream of an independent judiciary remains less than
realised’. He thinks that Bangladesh’s current position is not in the democratic
terrain but rather is one of a hybrid political system. Hossain’s conclusion is
that Bangladeshi constitutionalism has remained fraught with the post-colo-
nial misconception that a strong executive is required in newly independent
states such as Bangladesh.
In Chapter 9, M Jashim Ali Chowdhury analyses the Bangladesh parlia-
ment’s constitutional positioning and contributions. For Chowdhury, Bang-
ladesh’s original constitutional scheme of a Westminster parliamentary system
was influenced by the post-colonial elitist political fascination for the British
model as well as a desire of the founding fathers to avoid the evils of pre-1971
Pakistani authoritarian presidentialism. As this chapter poignantly reports,
Bangladesh’s parliament has been through diferent cycles of constitutional
changes from, among others, a democratic beginning to one-party presiden-
tialism, to military dictatorships, and to the ongoing one-party monopoly.
Chowdhury thinks that all these changes probably reveal the remarkable resil-
ience of the parliamentary system, despite the deviant constitutional practices.
He argues that the decline of principled liberal-conservative bipartisanship in

the face of an overtly dominating and dynastic party system has rendered the
constitutional design of the parliamentary system a ‘hollow device’ for ac-
countability and constitutionalism in Bangladesh.
Chapter 10 analyses the role of political parties under the Constitution with
particular reference to the process of constitution-making and amending. This
chapter by Nizam Ahmed is a unique chapter in that the constitutional role
of political parties has probably not been a subject of constitutional scholar-
ship and analysis before. Ahmed notes that political parties do play a more
important role in making and amending the Constitution than is often ap-
preciated. He hails the role of political parties in readopting the parliamentary
form of government in 1991 and devising the system of non-party caretaker
government (now defunct) in 1996 to ensure the succession of governments.
Ahmed, however, forcefully argues that the decline in or the absence of a com-
petitive party political system in recent times, with the emergence of a single-
dominant party, is ‘antithetical to democracy’.
Part IV (Chapters 11 to 13) takes up certain special issues relating to rights
such as social and economic rights and their enforceability, women’s consti-
tutional position, and the ideal of social justice. Chapter 11 by Muhammad
Ekramul Haque analyses the question of constitutional protection of economic
and social human rights that are widely considered unjusticiable across the
world. Here, Haque examines the intention of the framers of the Constitution
and the relevant judicial interpretations, and concludes that the constitution-
makers never intended these rights to be unenforceable for an indefinite pe-
riod. Rather, he argues, the framers were of the view that social and economic
rights could be made enforceable in the future. He further argues that there
are some apparatuses of constitutional protection for the social and economic
human rights embedded in the Constitution as state policy principles.
Chapter 12, by Psymhe Wadud, seeks to locate women within ‘we, the
people’, a term with which the preamble of the Constitution opens. Wadud
argues that despite the founding Constitution’s entrenchment of the principle
of formal equality, a lack of gender sensitivity permeates the constitutional
scheme. This is another unconventional chapter on women’s rights in that its
analyses transcend the traditional discourse of discrimination against women.
The chapter instead assesses the women’s status in the light of the constitu-
tional promise for their equality in the public realm, based on a scrutiny of
the constitution-making process and the relevant jurisprudence. The chapter
further argues that the under-representation of women in the political realm
violates the meta-constitutional norm of representative democracy.
Chapter 13, jointly contributed by Tashmia Sabera and Naveed Mus-
tahid Rahman, analyses social justice within the framework of ‘justice as
fairness’. This chapter, thus, supplements Haque’s chapter on social and
economic rights. Broadly, Chapter 13 examines the concept of socialism as
one of the four founding principles of the Constitution. Sabera and Rah-
man analyse the constitutional provisions relating to the distribution of
resources. They conclude that a more robust juridical reading of the social
welfare system in Bangladesh is possible and desirable. For them, the rel-
evant provisions centred around the principle of social justice can be used,
especially by the Supreme Court, to enforce a much stronger distribution
of resources.
Ali Riaz’s Chapter 14 is the concluding chapter. Here, Riaz asks a fun-
damental question of constitutionalism. The question is whether constitu-
tionalism in Bangladesh is interrupted or has been absent from the polity.
Insightfully, Riaz underlines a divergence between the Constitution and poli-
tics, a trend that is discernible from the multiple phases of the nation’s con-
stitutional journey since 1972. For him, despite the Constitution’s express
commitment in this regard, popular sovereignty has been denied through
various means and representation of people circumscribed via the manipu-
lated electoral process on various occasions. He concludes that every system
of government tried and practised in Bangladesh, including the prime minis-
terial system, has been used to create the opportunity for the emergence and
practice of authoritarianism by way of abusing the Constitution. The results
of the practice of abusive constitutionalism have been the absence of checks
and balances on the executive, the creation of a pliant legislature and practice
in politics, the absence of judicial independence, and the rule by law instead
of the rule of law.
Conclusions: what’s in the future’s vault?

On a positive note, the history of Bangladesh’s Constitution presents a unique
case of constitutional endurance or resistance. Despite many attacks on the
Constitution, both by political and non-political forces, it has survived. Even
the military juntas did not overthrow the nation’s charter; they simply post-
poned it during their regimes. This narrative of constitutional resistance,
however, quite studiously suppresses the truth. The truth is that there were a
couple of constitutional replacements or dismemberments in the sense that es-
sential features of the Constitution – concerning its identity – were imputed.104
The first major constitutional dismemberment appeared in 1975 when the 4th
Amendment switched from a multi-party democracy to a one-party state. The
other major dismemberment was during the two martial law periods (broadly
from 1975 to 1990) when the country was governed largely by the dictates of
the military rulers and the martial law regulations were given a place over the
Constitution. When the Constitution was called back to operation during the
military regimes, it was a scenario of a constitution without constitutionalism.
All these constitutional dismemberments left deleterious impacts on Bangla-
desh’s constitutionalism as we see it today.
104 On this idea, see Richard Albert, ‘Constitutional Amendment and Dismemberment’ (2018)
43(1) Yale J of Int’l L 1.
As the chapters in this volume portray, in the past fifty years of the nation’s
constitutional journey (1972–2022), both governance and politics have often
veered away from the ideals of the Constitution. The concluding chapter by
Ali Riaz has seen this divergence between the founding ideals and the current
politics through a critical lens, arguing that constitutionalism has remained
ever elusive in Bangladesh. Instead of a deliberative and parliamentary form of
democracy, Bangladesh has recently graduated to a nominal or sham democ-
racy. Defying the promise of its transition to democracy in 1991, Bangladesh
began to embrace democratic decline soon after the reestablishment of parlia-
mentary democracy via the 12th Amendment. All power began to be concen-
trated at the hands of the prime minister. This emergence of an overwhelming
executive is analysed in several chapters in this book. Democratic backsliding
in recent years has been so drastic that it is hard to see any traces of the demo-
cratic constitutional identity.105 Particularly, since after the general election of
2014, which was avoided by all major opposition parties, Bangladesh started
transitioning to autocracy, and, in the aftermath of a massively rigged election
in 2018, the country is a truly hybrid regime now.106 These developments
have been analysed and highlighted in several chapters. The current regime
(especially since 2013) is sufering from a serious problem of the absence of
respect for human rights and dignity, which aspect is not covered in this vol-
ume though.
The future of Bangladesh’s Constitution really depends on how it can lend
its agency to mend confrontational politics by providing a guarantee of fair
and free national elections. The current and longest-ever constitutional crisis is
rooted in the ability of the ruling party to influence and corrupt the electoral
system. The electoral system has been unrecognisably engineered in recent
years to suit the desire of the ruling party. Apart from the challenge of holding
competitive, free, and fair elections, there remains the continuing challenge of
consolidating democracy and building democratic institutions in Bangladesh.
105 On democratic backsliding, see further Ali Riaz, ‘The Pathway of Democratic Backsliding in
Bangladesh’ (2021) 28(1) Democratization 197.
106 See Ali Riaz, ‘Voting in a Hybrid Regime Explaining the 2018 Bangladeshi Election’ (2020)
12(2) Asian Politics & Policy 251; and A Riaz and S Parvez, ‘Anatomy of a Rigged Election
in a Hybrid Regime: The Lessons from Bangladesh’ (2021) 28(4) Democratization 801.
Part I
The founding of the

Constitution, competing
legal norms, and identity
building
2 The emergence of
Bangladesh’s legal system
Revolutionary legality and a new
rule of recognition
Nafiz Ahmed*
Introduction
To provide an account of the emergence of the legal system of Bangladesh,
we must take a philosophical approach and a historical approach. Other schol-
ars have adequately given historical accounts of the emergence of Bangladesh
from a legal perspective.1 This chapter does not spill more ink looking at the
detailed history of the emergence of Bangladesh’s legal system (BLS). It is a
philosophical investigation into the emergence of the BLS. It lays down a very
brief narrative of the most significant events needed to provide a descriptively
adequate explanation of how the legal system of Bangladesh came into exist-
ence. This chapter explains how the BLS gained its normative force.
Anyone remotely familiar with Bangladesh knows about the glorious and
bloodstained revolution that gave birth to it. Bangladesh created an autochtho-
nous legal system through a nine-month-long war and years of political struggle
predating the war. In Anwar Hossain Chowdhury v Bangladesh,2 the Appellate
Division of the Supreme Court of Bangladesh (AD) rightly held as follows:
Ours is an “autochthonous” constitution. “Autochthony” in its most

common acceptance is the characteristic of a Constitution[,] which has
been freed from any trace of subordination to and any link with the origi-
nal authority of the Parliament of the foreign power that made it. The
* The author thanks Matthew Kramer for his detailed comments on an earlier draft of this chapter
and Lars Vinx for his valuable advice. He is grateful to the editors for their kind invitation and
comments. The author appreciates his friends Sajid Hossain for proofreading the chapter and
Emraan Azad for recommending some essential readings. The author fondly remembers the con-
versations he had with his late father, Nasir Uddin Ahmed, about the formation of Bangladesh.
1 See Ridwanul Hoque, ‘The Founding and Making of Bangladesh’s Constitution’ in Kevin YL
Tan and Ridwanul Hoque (eds), Constitutional Foundings in South Asia (Hart Publishing 2021)
91–119; Abul Fazl Huq, ‘Constitution-Making in Bangladesh’ (1973) 46(1) Pacific Afairs 59;
Kamal Hossain, Bangladesh: Quest for Freedom and Justice (University Press Limited 2013); Mu-
hammad Ekramul Haque, ‘Formation of the Constitution and the Legal System in Bangladesh
From 1971 to 1972: A Critical Legal Analysis’ (2016) 27(1) Dhaka University Law Journal 41.
2 (1989) 41 DLR (AD) 165.
DOI: 10.4324/9781003276814-3
30 Nafiz Ahmed
aim is to give . . . a constitutional instrument the force of law through its

own native authority. A factual autochthony is generally achieved after a
revolution.3
A philosophical/theoretical account of how the Bangladeshi legal system came

about must be able to explain its autochthonous character. Unlike some post-
colonial states, the Constitution of Bangladesh did not gain its legitimacy from
the Constitution of Pakistan or the Westminster Parliament. Instead, Bangla-
desh’s Constitution and legal system emerged through a revolution. A revolu-
tion occurs when a new system replaces the previous system.4 An account of
revolutionary legality must answer how the existing legal system discontinues
after a revolution and a new legal system emerges.
As there are multiple conflicting theories of how a legal system emerges
through a revolution, this chapter first finds out the best theory of revolution-
ary legality. After deciding which theory best explains revolutionary legality,
this chapter examines the historical facts of the creation of Bangladesh in light
of that theory.
One possible way of explaining the emergence of the BLS may be through
the Kelsenian model of the grundnorm. Courts have often cited Hans Kelsen’s
theory to explain revolutionary legality.5 Harris wrote that Kelsen’s theory
“licensed the judges in the revolution cases – or so they [Judges] held – to
accept the legality of the successful revolutions occurring in their respective
countries, without entering the political arena.”6 However, this chapter ar-
gues that Kelsen’s theory fails to describe how an autochthonous legal system
comes about. Instead, the emergence of an autochthonous legal system can be
best described through HLA Hart’s theory. This chapter argues that through
the 1971 revolution, the rule of recognition of then East Pakistan was replaced
by a new rule of recognition which gave birth to Bangladesh’s autochthonous
legal system.
Kelsen on revolutionary legality
Grundnorm
Before discussing how Kelsen explained the concept of revolutionary legal-

ity and the emergence of a new legal system, it is useful to briefly introduce
Kelsen’s Pure Theory of Law and his idea of grundnorm (basic norm). In his
3 ibid, para 55.

4 John Finnis, Philosophy of Law: Collected Essays, vol 4 (Oxford University Press 2011) 407.
5 See JW Harris, ‘Where and Why Does the Grundnorm Change?’ (1971) 29(1) Cambridge
Law Journal 103; The State v Dosso (1958) 2 Pakistan S.C.R. 180; Bangladesh Italian Marble
Works Ltd. v Bangladesh (2010) 62 DLR (HCD) 70. In Bangladesh Italian Marble, the Court
remarked that the grundnorm theory can be used to explain revolutionary changes in a legal
system but not as a precedent or justification for recognising a revolution [at para 580–84].
6 Harris (n 5) 104.
The emergence of Bangladesh’s legal system 31
philosophical journey, Kelsen set out to explain the unity and normativity of
legal systems and considered the existence of the grundnorm indispensable
in explaining them.7 Kelsen’s theory has two axioms that he considered to
be self-evident, not requiring any justifications.8 The first axiom is that “two
laws, one of which directly or indirectly authorises the creation of the other,
necessarily belong to the same legal system.”9 The second axiom is that all the
laws are validated directly or indirectly by one law in a legal system.10 If the
same supra-law authorises the creation of two laws, they belong to the same
legal system. In other words, for two laws to exist in the same legal system,
one must authorise the creation of the other, or both must be created under
the same (superior) law. If two laws fail to meet the demands of the two
axioms, according to Kelsen, they cannot belong to the same legal system.
Through the two axioms, Kelsen tried to provide an authoritative criterion
to determine whether a legal rule belongs to a certain legal system. Thus,
according to Kelsen, a law is valid in a legal system only if it is created by a
higher law.
Kelsen realised that the second axiom of his theory is flawed as an empiri-
cal generalisation. This is because there are legal systems where the written
constitution does not provide for the legal validation of customs. Neverthe-
less, in those systems, customs may act as a valid source of law. For those legal
systems, the second axiom of Kelsen’s theory is untrue as the constitution and
customs exist as parts of the same legal system even though the same law does
not authorise their creation.11 To deal with this problem, Kelsen argued that
in each legal system, a non-positive law exists that authorises the creation of
fundamental constitutional laws.12 The existence of such a non-positive law
does not depend on the law-making action of any organ of the state. Instead,
to Kelsen, such a law is a logical necessity to make sense of the legal system.
Kelsen called this law the grundnorm or the basic norm/law. To Kelsen, the
grundnorm is a presupposition or hypothesis in juristic thinking and not a so-
ciopolitical phenomenon.13 He argued that the grundnorm is something that
is logically necessary to explain the unity of a legal system.14
The nature of the grundnorm often confuses those who fail to read Kelsen’s
work through a philosopher’s eyes. A grundnorm cannot be read with the same
specs used to read positive laws. The Appellate Division (AD), on multiple
7 Joseph Raz, ‘Kelsen’s Theory of the Basic Norm’ (1974) 19(1) American Journal of Jurispru-
dence 94, 94–95.
8 ibid 95.
9 ibid.
10 ibid.
11 For a detailed discussion, see Hans Kelsen, General Theory of Law and State (Harvard Univer-
sity Press 1945) 126.
12 Raz (n 7) 95.
13 Hans Kelsen, ‘On the Pure Theory of Law’ (1966) 1(1) Israel Law Review 1, 6; Harris (n
5) 106.
14 Harris (n 5) 117. Kelsen saw jurisprudence as a scientific study of the law.
32 Nafiz Ahmed
occasions, misread Kelsen’s theory. For instance, in Anwar Hossain Chowdhury,

the majority court observed that “an amendment of the Constitution is not
a grundnorm because it has to be according to the method provided in the
Constitution.”15 Here, the Court defined the grundnorm as a positive law.16
The majority in Anwar Hossain Chowdhury considered the original Constitu-
tion to be the grundnorm. However, as already discussed, the Constitution
itself and alone cannot be the grundnorm of Bangladesh because the grund-
norm must authorise the creation of the Constitution. Theoretically, we cannot
discount the possibility of the existence of a legal system where a constitution is
the only grundnorm. There can, however, be a legal system that consists only of
laws validated by the constitution and where no customary norms are recognised
as valid law. There may also be a legal system where customary constitutional
norms can be the grundnorm. In a complex modern legal system like Bang-
ladesh, the grundnorm cannot solely be the provisions of the Constitution,
because, as argued in this chapter, there would be a grundnorm that authorised
the creation of Bangladesh and its Constitution following a revolution.
To understand what the content of a grundnorm may look like, let us con-
sider an example of the probable grundnorm in the United Kingdom. Harris
argues that in the United Kingdom “there are at least two sets of norms”
(grundnorm) that “authorise the creation of general norms.”17 One such norm
is that “coercive acts ought to be applied in accordance with statutes” enacted
by parliament, and the other norm is that “coercive acts ought to be applied in
accordance with judge-made rules.”18 To illustrate the nature of “authorising
constitutional norm” generally, he described the grundnorm in the UK as the
norm that “coercive acts ought to be applied only under the conditions and
in the ways customarily recognised as constitutional from time to time by the
population at large.”19 To explain Kelsen’s view of a legal system with a written
constitution, Harris wrote as follows:
. . . the formula expressing grundnorm is stated thus: “Coercion of man

against man ought to be exercised in the manner and under the condi-
tions determined by the historically first constitution.” The grundnorm
of any given national order must apparently be found, in terms of this
formulation by substituting for the words “the historically first constitu-
tion” some words by which the written constitution now in force can be
identified, such as “the constitution of the Fifth Republic” in the case of
contemporary France. But that there is no shift in theory on this point
15 Anwar Hossain Chowdhury (n 2) para 218. The same argument was made by the AD in Bang-
ladesh v Sontosh Kumar Shaha (2016) 13 ADC (AD) 853, para 68, where the Court cited the
exact words of the Anwar Hossain Chowdhury judgment.
16 ibid.
17 Harris (n 5) 109.
18 ibid.
19 ibid 111.
between the two works is made clear when, later in The Pure Theory of
Law, we read that, where a basic norm is presupposed in the case of
a consciously created constitution, the individuals who created it “are
looked upon as norm-creating authorities.”20
The content of the grundnorm of a legal system with a written constitution

may state that the first constitution made by the framers ought to be followed.
For logical necessity, it must be assumed that the grundnorm authorised the
framers of the first constitution to enact the constitution. However, Kelsen gen-
erally distinguished between two types of constitutions: written constitutions
and customary constitutions. For a constitution that has both a written and a
customary part, the grundnorm must be understood to perform two functions:
authorising the framers to enact a written constitution and authorising the citi-
zens to create from time to time “a material constitution by custom.”21
Change in the grundnorm
Revolutionary legality may be accounted for by claiming that a revolution

changes the existing grundnorm. According to Kelsen, a revolution “occurs
whenever the legal order of a community is nullified and replaced by a new
order in . . . a way not prescribed by the first order itself.”22 It may, therefore,
be argued that since the grundnorm is the ultimate rule of validity in a legal
system, a legal system ceases to exist, and a new legal system is created when-
ever the grundnorm changes. The content of a legal system’s grundnorm may
provide for mechanisms through which the grundnorm can be changed with-
out a revolution. However, non-revolutionary changes to the grundnorm are
beyond the scope of this chapter.
If a Kelsenian account of revolutionary legality is to be accepted, it should
be able to explain when and how the grundnorm changes. It can be recalled
that the grundnorm is a hypothetical norm that Kelsen thought is necessary to
explain the unity of a legal system. The grundnorm of a legal system is changed
when jurists make new logical assumptions about it. As Harris explained:
Being merely a hypothesis of juristic thinking, the grundnorm does

not change the moment the revolutionaries shoot the King. It cannot
change until jurists change their thinking, that is, until lawyers begin to
make post-revolutionary assertions to the efect: “The law in the coun-
try now is . . .,” where “now” refers to some revolutionary established
source of law.23
20 ibid 110.
21 ibid 116.
22 Kelsen (n 11) 117, as cited in Finnis (n 4).
23 Harris (n 5) 117.
34 Nafiz Ahmed
So, the grundnorm changes when jurists presuppose the existence of a diferent
basic law than before that authorises the creation of constitutional law. Once ju-
rists start giving primacy to a new ultimate source of legal validity in their logical
arrangements, the grundnorm changes. In a legal system with a written consti-
tution, the grundnorm can be said to have changed through a revolution when
“jurists begin to deduce laws from some newly promulgated constitution.”24
The grundnorm would then refer to the act of the framers (or fathers) of the
new constitution to ground the normativity of the laws of that system.
For the presupposition of a new grundnorm by jurists, an element of ef-
cacy is also necessary.25 According to Kelsen, a grundnorm “can only establish
a law-making authority whose norms are, by and large, observed, so that social
life broadly conforms to the legal order based on the hypothetical norm.”26
Kelsen argued that the grundnorm must refer to the authority of a person or
body of persons whose law-making actions have efective coercive force. A le-
gal order is considered efective when the legal rules of that order are generally
obeyed, and disobedience leads to coercion. A new grundnorm cannot be pre-
supposed if an efectively coercive social order does not exist. So, jurists may
only make presuppositions about a new grundnorm when such presupposition
is necessary to interpret efective legal norms within the relevant territory as a
consistent field of meaning.27
Flaws of the Kelsenian model

The Kelsenian model of revolutionary legality has some apparent defects. The
primary problem is with the idea of a grundnorm. It is difcult to accept that
a revolution occurs when the grundnorm changes because the grundnorm is a
hypothetical norm. Kelsen did not claim that the grundnorm exists as a social
or political fact. Instead, Kelsen argued that presupposing a grundnorm is
the only way to interpret the legal system as a consistent field of meaning. To
Kelsen, presupposing the existence of a hypothetical basic norm was the only
way to understand the unity of the law. We do not have to presuppose the ex-
istence of a hypothetical basic norm if an actual rule exists in a society that can
explain the unity in its legal system. However, the unity of a legal system can
be explained through Hart’s rule of recognition.28 The rule of recognition
exists as a social fact. Since a more descriptively adequate account of legality
is available, Kelsen’s theory of a hypothetical basic law must be rejected.
Another problem with the Kelsenian model is that a grundnorm is presup-
posed after an efective legal system starts to exist. How a legal order emerges
cannot be explained through the emergence of a fresh grundnorm. One
24 ibid 118.
25 ibid 119.
26 Hans Kelsen, The Pure Theory of Law (Max Knight trans., University of California Press 1967).
27 Harris (n 5) 119.
28 The rule of recognition is discussed at length in a later section.
cannot claim that an autochthonous legal system emerged with the change of
the grundnorm since the grundnorm can only be presupposed after the legal
system has emerged. However, it may be argued that an autochthonous legal
system emerges simultaneously with a new grundnorm. Jurists may, however,
make new presuppositions regarding the grundnorm after a new legal system
emerges, and such presupposition would be retroactive.
The Kelsenian model is also vulnerable to attacks for its unnecessary em-
phasis on the “historically first constitution.” Kelsen thought that an inquiry
into the validity of the constitution might lead us to “discover an older con-
stitution; that means the validity of the existing constitution is justified by the
fact that it was created according to the rules of an earlier constitution by way
of a constitutional amendment.”29 Kelsen continued:
In this way[,] we eventually arrive at a historically first constitution that

cannot have been created in this way and whose validity, therefore, can-
not be traced back to a positive norm created by a legal authority; we
arrive, instead, at a constitution that became valid in a revolutionary way,
that is, either by breach of a former constitution or for a territory that
formerly was not the sphere of validity of a constitution and a national
legal order based on it.30
Finnis noted that the quoted passage from Kelsen creates ambiguity in his ac-
count of how former imperial territories obtained their independence.31 If ref-
erence to the historically first constitution is made, that first constitution will
retain some legal validity in a new legal system. Emphasis on the historically
first constitution undermines the independence of the newly emerged legal
system. This is highly undesirable for an autochthonous legal system as it does
not depend on any previous constitutions for its validity.
Another problem with the Kelsenian model is that Kelsen seems to have
suggested that the content of the grundnorm is inherently moral. It is ap-
parent from his suggested formulation of the content of the grundnorm that
one ought to act as the historically first constitution prescribes.32 However, it is
not necessary for the content of the ultimate rule of validity to be inherently
moral. One may subscribe to a legal system for various pragmatic reasons that
are far from moral.33
Hart’s rule of recognition

A better account of the emergence of a new legal system from a revolution can be
found in Hart’s rule of recognition. To explain how a legal system is formulated,
29 Kelsen (n 26) 200.

30 ibid.
31 Finnis (n 4) 413–414.
32 Harris (n 5) 110.
33 See Matthew H Kramer, H.L.A. Hart: The Nature of Law (Polity Press 2018) 159–162.
36 Nafiz Ahmed
Hart in chapter V of his Concept of Law34 provided the example of what he called
a regime of primary rules or unofcial rules.35 A regime of primary rules is a
society without any legal institutions. This is a society where human conduct is
guided only by rules of custom, or what Hart called primary rules (rules which
impose duties on the members of the society).36 Hart argued that a regime of
primary rules would have some deficiencies in its social control mechanism. It
would not have, inter alia, any authoritative way of identifying what rules count
as valid rules of that society. Hart noted that in a regime of primary rules,
If doubts arise as to what the rules are or as to the precise scope of some
given rule, there will be no procedure for settling this doubt, either by
reference to an authoritative text or to an ofcial whose declarations on
this point are authoritative.37
Hart called this defect of a regime of primary rules its “uncertainty.”38

Hart argued that the defects of a regime of primary rules could be remedied
only through the introduction of secondary rules, which are diferent from
primary rules of obligation.39 Once the defects of the regime of primary rules
are remedied through the secondary rules, the union of these two types of
rules creates a legal system.40 Hart wrote,
[Secondary rules] may all be said to be on a diferent level from the

primary rules, for they are all about such rules; in the sense that while
primary rules are concerned with the actions that individuals must or
must not do, these secondary rules are all concerned with the primary
rules themselves. They specify the ways in which the primary rules may
be conclusively ascertained, introduced, eliminated, varied, and the fact
of their violation conclusively determined.41
According to Hart, introducing an authoritative and ultimate rule of validity

would remedy the defect of uncertainty. This ultimate rule of validity would
be a secondary rule. Hart called this ultimate rule of validity “the rule of
recognition.”42 The rule of recognition provides an authoritative criterion for
34 HLA Hart, The Concept of Law (Joseph Raz and Penelope A. Bulloch eds, 3rd edn, Oxford
University Press 2012).
35 This example must not be seen as an anthropological study, but rather as a thought experi-
ment that Hart ofered to “stimulate reflection on the crucial functions that are performed by
secondary norms [norms about norms].” Kramer (n 33) 71.
36 Hart (n 34) 91.
37 ibid 92.
38 ib.
39 ibid 94.
40 ib.
41 ib.
42 ib.
the identification of all valid legal rules. When a rule of recognition exists in a
society, a primary rule is a valid rule only if it fulfills the requisites of the rule
of recognition. The rule of recognition will “specify some feature or features
possession of which by a suggested rule is taken as a conclusive afrmative
indication that it is a rule of the group to be supported by the social pressure
it exerts.”43 The rule of recognition can be said to exist in a society on the
condition that such a rule is, as a matter of social fact, used by ofcials, judges,
lawyers, and private persons to identify the legal rights and obligations of that
society’s members. A rule of recognition can be uncovered by observing where
a society’s ofcials, judges, lawyers, etc., look while trying to find the law. A rule
of recognition may take many diferent forms, and the complexity of a rule of
recognition would depend on the complexity of the relevant legal system.
Unlike Kelsen’s grundnorm, the rule of recognition is not a hypothetical
rule. Hart argued that the rule of recognition exists in society simply as a social
practice.44 The existence of the rule of recognition is a matter of social practice
in the same manner as the existence of primary rules in a regime of primary
rules. As mentioned previously, a rule of recognition exists in the practice of
society’s lawyers, ofcials, judges, and even private persons. They use the rule
of recognition to identify the valid rules of society. For example, if in the legal
system “L”, the rule of recognition is whatever the Assembly of citizens decides is
law, that law of the Assembly would be the rule of recognition of “L” because
the ofcials (judges, lawyers, and so on) as a matter of fact would look into the
decisions of the Assembly to locate valid laws.
Hart’s writings often confuse readers to think that all members of a society
play a role in recognising a rule as the ultimate rule of validity.45 It is quite
implausible to know what all members of a society consider to be the rule of
recognition, especially in a complex modern legal system. In efect, only law-
yers, judges, and ofcials use it to ascertain the content of the law in a modern
legal system. Being aware of the complexities of a modern legal system, Hart
noted that the addressees of a rule of recognition are the legal ofcials (this
includes government ofcials).46 The conduct and attitudes of legal ofcials
are the constitution of the rule of recognition.47 As Hart wrote,
There is, of course, a diference in the use made by courts of the criteria
provided by the rule and the use of them by others: for when courts
reach a particular conclusion on the footing that a particular rule has
been correctly identified as law, what they say has a special authoritative
status conferred on it by other rules.48
43 ibid.
44 ibid 110.
45 As pointed out by Kramer (n 33) 79, Dworkin was guilty of such a misreading. See Ronald
Dworkin, Law’s Empire (Hart Publishing 1998) 34–35.
46 Kramer (n 33) 79.
47 ibid.
48 Hart (n 34) 101–102.
38 Nafiz Ahmed
Since the rule of recognition imposes law-ascertaining duties and confers pow-
ers to perform those duties on legal ofcials, a rule providing the criteria of
legal validity will become the rule of recognition of a society when the legal of-
ficials accept that rule as the ultimate source of validity. However, it is perfectly
conceivable that simpler societies may exist where the rule of recognition is
addressed to all the members of society.
A new rule of recognition can be said to have been introduced in society if
legal ofcials of that society accept that rule of recognition. In other words, for
a rule of recognition to be existing, legal ofcials must take an “internal point
of view” to that rule. Taking an internal point of view towards a rule means
accepting that rule as the normative standard for behaviour. As Kramer noted:
The internal point of view is that of a person who participates in some

practice or activity of [the] institution. Such a person seeks to uphold the
duty-imposing norms of the practice or activity or institution, by adopt-
ing the critical reflective attitude in relation to them.49
One can be said to have taken an internal point of view to rule “R” if – she uses
“R” as a normative standard for her behaviour, criticises others for deviation
from standards of “R”, and considers criticism to be justified if others criticise
her for deviation from standards of “R”.50
According to Hart, a legal system would emerge when legal ofcials of a
given society take an internal point of view to a rule of recognition. If the rule
of recognition ceases to exist, the legal system will cease to continue. Since a
revolution occurs when a new system replaces an old system, it can be said that
when a new rule of recognition replaces the old rule of recognition through
revolution, the previous legal system is replaced by a new legal system. A
change in the rule of recognition changes the identity of the legal system. This
new rule of recognition does not need to obtain legal validity from any other
laws. It exists as a matter of social practice. Accepting this account would not
require us to refer to any previous constitution or basic norm to find legality in
the new legal system. Hart’s rule of recognition is a fit theory to explain how
an autochthonous legal system emerges. Since the legality of all rules can be
assessed through the rule of recognition, the rule of recognition is capable of
explaining the unity in a legal system.
Emergence of the BLS

The legal system of Bangladesh emerged when the rule of recognition changed
in 1971. Previously, Bangladesh (known as East Pakistan before 1971) was a
part of Pakistan from 1947 until 1971. Before 1947, Bangladesh was a British
49 Kramer (n 33) 62.

50 Hart (n 34) 89–90.
colony. Through the Indian Independence Act 1947, British India was di-
vided into two separate nations, namely, India and Pakistan.51 Present-day
Bangladesh was the then East Wing of Pakistan and was separated from its
West Wing by 1,200 (twelve hundred) miles of Indian territory. Bangladesh’s
time with Pakistan was plagued with constitutional problems as the coun-
try struggled to establish a democratic form of government.52 The leaders
and the general people of Bangladesh demanded autonomy from the very
inception of Pakistan.53 The Pakistani government’s (often military juntas)
continued reluctance to give autonomy to Bangladesh and the lack of respect
for the dignity of its people resulted in sustained and protracted movements
demanding independence, leading to the eventual emergence of Bangladesh
as a sovereign nation.54
In December 1970, the military government of Pakistan held a general
election where the Awami League,55 which led the movements for Bangla-
desh’s autonomy, won all but 2 of 169 seats in Pakistan’s national parliament
that were allocated to the then East Wing. The December elections were
called for electing a Constituent Assembly for framing the Constitution of
Pakistan (subject to the conditions and approval of the military junta).56 The
Awami League had won 167 in a house of 313 seats and formed the majority
in the assembly.57 This is the most significant period for the creation of the
BLS. The military government showed continuous reluctance to hand over
power to the elected representatives and repeatedly postponed the transfer of
power. However, the people of Bangladesh accepted their elected representa-
tives as their valid representatives with the power to form the government and
frame a constitution. The elected representatives formed themselves into the
Constituent Assembly for independent Bangladesh in a revolutionary way and
were self-empowered to enact the Constitution.58
The illegality in delaying the transfer of power resulted in a rejection of the
military government in March 1971. On 1 March 1971, the military gov-
ernment declared that the summoning of the National Assembly would be
51 For detailed discussion on the partition of India, see, Anita Inder Singh, The Origins of the
Partition of India 1936–1947 (Oxford University Press 1987) 203–217.
52 See Hoque (n 1) 94.
53 ibid.
54 For a detailed discussion, see Hoque (n 1) 92–100.
55 Formerly known as East Pakistan Awami Muslim League and later East Pakistan Awami
League (from 1955). Awami League was an East Pakistan–based secular political party. For
details about the Awami League in the 1970s, see, M. Rashiduzzaman, ‘The Awami League in
the Political Development of Pakistan’ (1970) 10(7) Asian Survey 574.
56 Sharif al Mujahid, ‘Pakistan: First General Elections’ (1971) 11(2) Asian Survey 159, 161.
57 Hossain (n 1) 65.
58 See the Proclamation of Independence, which stated as follows: “We the elected representa-
tives of the people of Bangladesh, as honour-bound by the mandate given to us by the people
of Bangladesh whose will is supreme duly constituted ourselves into a Constituent Assembly.”
For the Proclamation of Independence, see the Constitution of Bangladesh, schedule 7.
40 Nafiz Ahmed
postponed to a “later date.”59 This declaration gave rise to public outrage and
even the legal ofcials (in the sense of Hart’s theory) walked out of their ofces
after the announcement by the military government. Hossain described the
event of 1 March 1971 in the following words:
Government employees began to walk out of the Secretariat and other

government ofces; banks, insurance, and other commercial concerns
were emptying out. A cricket match was on at the stadium; as soon as
the spectators heard the radio announcement [made by the military
government], they stormed out of the stadium. The students were
already out in the streets in spontaneous demonstrations, shouting slo-
gans of Joy Bangla [which translates to “victory of Bengalis”], and Bir
Bangali osthro dhoro, Bangladesh shadhin koro [which translates to “Brave
Bangalis take up arms, liberate Bangladesh”].60
The public outrage demonstrated by the people of Bangladesh showed the

support the elected representatives had. After the announcement of 1 March
1971, the Awami League called for a non-cooperation movement. They
directed the people of Bangladesh not to cooperate with the military gov-
ernment. Bangabandhu Sheikh Mujibur Rahman, the leader of the Awami
League, in his statement, declared, “It is the sacred duty of each and every
Bangalee not to cooperate with anti-people forces and indeed do everything
in their power to foil the conspiracy against Bangladesh.”61 It is to be noted
that Bangabandhu used the term Bangladesh, not East Pakistan. His call for
non-cooperation was met with widespread acceptance.
The non-cooperation movement shows that the people of Bangladesh, es-
pecially the legal ofcials accepted (took an internal point of view towards) the
directions of the elected representatives. The Awami League started publish-
ing central directives that were followed by the legal ofcials. This claim will
become evident from a few examples. The first directive issued by the Awami
League called for a province-wide strike in all sectors, including government
ofces and courts (except for some emergency services), which was met with
total compliance.62 Hossain described this event by noting that “the response
to the call for non-cooperation was total. Nothing moved. Ofces, courts, and
industries came to a total halt.”63 Even the curfews imposed by the military
government were systemically defied by the people.64 The senior civil serv-
ants expressly declared their collective support to the elected representatives.65
59 Hossain (n 1) 79.
60 ibid 80.
61 ibid 82.
62 ibid 84.
63 ib.
64 ib.
65 ibid 86–87.
Government ofces and banks started following the directions of the Awami
League and began to look to their directions to locate valid laws.66 So, the
people, including legal ofcials, started to take an internal point of view to-
wards the directions of the elected representatives rather than the military
government.
In March 1971, thus, the elected representatives assumed the functions
of a de facto government of the time. Elected representatives and senior civil
servants started meeting daily and continued to issue governance directives.67
A group of Awami League members, selected by Bangabandhu (the leader of
the elected party), and senior civil servants became the nucleus of the adminis-
tration in the then Eastern Wing of Pakistan.68 The railways and ports started
to function according to the directions of elected representatives.69 Even the
Bangali civilian ofcials working in the defence force sought directions from
the elected leaders.70 On 7 March 1971, in a public speech delivered in the
presence of about one million people, Bangabandhu called for the independ-
ence of Bangladesh.71
The events of March 1971 show that the legal ofcials rejected the or-
ders of the military government and accepted the directions of the elected
representatives.72 On 26 March, Bangabandhu in a short message declared
Bangladesh to be an independent country from thence. In the early hours of
26 March, the war of independence began. The elected representatives as a
collective body issued a Proclamation of Independence on 10 April 1971 but
with retrospective efect from 26 March 1971, ofcially declaring Bangladesh’s
independence. Through these events and Bangladesh’s war of independence,
the rule of recognition changed. The new rule of recognition recognised the
directions and declarations of the elected representatives, issued through cer-
tain procedures, but most importantly through the Proclamation of Inde-
pendence as the paramount source of law in the new system of governance in
Bangladesh. The Proclamation of Independence,73 which efectively served as
the first interim Constitution, made provisional arrangements for Bangladesh’s
governance and empowered the president (Bangabandhu) to summon and ad-
journ the Constituent Assembly, and “to do all other things that may be neces-
sary to give to the people of Bangladesh an orderly and just Government.”74
66 ibid 86.
67 ibid 87.
68 ib.
69 ibid 90
70 ibid 92.
71 In his speech, Bangabandhu said, “God willing, we shall free the people of this land. The
struggle this time is a struggle for emancipation. The struggle this time is a struggle for inde-
pendence.” For this historic speech, see the Constitution of Bangladesh, schedule 5.
72 For more on civil disobedience, see Alexander Livingston, ‘Fidelity to Truth: Gandhi and the
Genealogy of Civil Disobedience’ (2018) 46(4) Political Theory 511.
73 See the Constitution of Bangladesh, schedule 7.
74 Hoque (n 1) 101.
42 Nafiz Ahmed
The Proclamation also confirmed the declaration of independence that Bang-

abandhu made on 26 March 1971.75
On 16 December 1971, the West Pakistani occupying military surrendered,
and Bangladesh won its war of independence, which further solidified the
new rule of recognition. On 11 January 1972, Bangabandhu, in his capacity
as the president of Bangladesh (and the ultimate and unquestioned hero of
Bangladesh’s liberation struggle)76 promulgated the Provisional Constitution
of Bangladesh Order that extended the scope of the Proclamation of Inde-
pendence. Even though the Provisional Constitution of Bangladesh Order was
not directly promulgated by the Constituent Assembly, the authority to prom-
ulgate it stemmed from the Proclamation of Independence, making the new
rule of recognition its source of legal validity.
In Jadu Nath Majumdar v Hasina Begum,77 which was decided five months
before the enactment of the Constitution, the Supreme Court of Bangladesh
confirmed the legal status of the Proclamation of Independence and the Pro-
visional Constitution of Bangladesh Order. The Court’s judgment implies that
the Court considered the legitimate power to be lying with the elected rep-
resentatives.78 The Court held that the actions of the elected representatives
were legally valid. This decision further shows that the events of March 1971
and onward led to the emergence of a new rule of recognition.
The Constitution of the People’s Republic of Bangladesh was adopted on
4 November 1972 and came into force on 16 December 1972. The Con-
stituent Assembly consisted of elected representatives of the people of Bangla-
desh. Along with those elected to join the National Assembly, representatives
elected in the provincial election joined the Constituent Assembly.79 The Con-
stitution of the People’s Republic of Bangladesh was signed by 357 members
of the Constituent Assembly. Since the new rule of recognition recognised the
decisions of the elected representatives of Bangladesh as the ultimate source
of law, the Constitution of Bangladesh gained its legal legitimacy from the
elected representatives who formed the Constituent Assembly. The new Con-
stitution provided that “all existing laws shall continue to have efect but may
be amended or repealed by law made under this Constitution.”80 Even though
the laws that existed on 25 March 1971 initially attained their validity from a
previous rule of recognition, after the creation of the BLS, their legal validity
75 David Ludden, ‘The Politics of Independence in Bangladesh’ (2011) 46(35) Economic and
Political Weekly 79.
76 Rounaq Jahan, ‘Bangladesh in 1972: Nation Building in a New State’ (1973) 13(2) Asian
Survey 199, 207.
77 (1973) 25 DLR (HCD) 390 (decided on 30 June 1972).
78 ibid.
79 For details on the constitution of the Constituent Assembly, see Hoque (n 1) 103.
80 The Constitution of Bangladesh, art. 149. The Bangladesh (Adaptation of Existing Laws) Or-
der 1972, also gave recognition to all the laws that existed in Bangladesh on 25 March 1972,
subject to consequential changes.
derives from the new rule of recognition. The laws enacted before the creation
of the BLS are now laws of Bangladesh (provided that they were not changed
or repealed) because the people of Bangladesh (through their representatives)
chose to recognise them as valid laws.
Conclusion
The legal system of Bangladesh emerged through the events of 1971 when a
new rule of recognition replaced the old one. It cannot be claimed that the
legal ofcials accepted this new rule of recognition overnight, following the
independence of Bangladesh on 26 March 1971. The acceptance of this new
rule of recognition resulted from years of struggle for independence. Years of
discrimination between the East and West Wings of Pakistan and the public
outrage caused by the military junta’s denial to transfer power to the elected
representatives of the 1970s general election resulted in the people of Bangla-
desh’s rejection of the previous rule of recognition and adoption of a new rule
of recognition. The new rule of recognition recognised the people’s elected
representatives as the ultimate law-making authority and gave legal validity to
the Proclamation of Independence, the Provisional Constitution of Bangladesh
Order, and the Constitution of the People’s Republic of Bangladesh.
The revolution that led to the independence of Bangladesh and the creation
of a new legal system is a unique one as elected representatives of the people
(winners in the general election) directly led it. Since the leaders of the revolu-
tion were directly elected by the people for the purpose mainly of creating a
constitution for the State of which Bangladesh was a part, the acceptance of
the new rule of recognition was widespread. Once the Constituent Assembly
promulgated the Constitution, it delegated its powers to the diferent organs
of the State through the Constitution. The Constitution has normative force
because it was enacted by the elected members of the Constituent Assembly
to whom the people delegated their power, and the legal ofcials treated the
decision of the Constituent Assembly as valid law.
Using Hart’s rule of recognition enables us to explain the emergence of
the legal system of Bangladesh through social and political facts, by referring
to actual events instead of theorising on hypotheticals (as Kelsen’s grundnorm
theory does). This account of the revolutionary legality, based on Hart’s rule
of recognition, allows us to truly appreciate how the BLS emerged and what
accounted for its validity.
3 The Constitution of Bangladesh
and international law
Kawser Ahmed*
Introduction
Despite the common perception that Bangladesh is a dualist1 country, there is a
divergence of opinions among scholars about the relationship between domes-
tic law and international law in the legal system of Bangladesh. According to
Karim and Theunissen, writing in 2011, the status of international law within
Bangladesh’s domestic legal order is unclear in many ways.2 Conversely, Azad,
after exactly ten years, comments that the position of international law, in gen-
eral, is quite clear in the legal system of Bangladesh.3 A scholar has recently
observed that the Supreme Court of Bangladesh is inching towards what might
be called ‘creeping monism’ through judicial activism.4 Scholars from all sides
have mainly relied on case laws and practices of the executive branch of the gov-
ernment in developing their respective views. To get a proper understanding
of the whole gamut of the relationship between domestic law and international
law in a given jurisdiction, it is essential to consider not only the state practices
but also a structural study of the Constitution. The general paradigm of the
relationship between domestic law and international law in Bangladesh, from
the constitutional point of view, may not appear that much unclear. Of course,
that does not mean that there are no grey areas in the framework of interaction
between international law and domestic law in Bangladesh.
* The author dedicates this chapter to Prof Kajalendu Dey, a former professor at the Depart-
ment of Bengali, Dhaka City College. He is grateful to Prof Ridwanul Hoque for his invaluable
guidance and comments. The author also wishes to thank Emraan Azad and Md Azhar Uddin
Bhuiyan for their support and assistance.
1 Alina Kaczorowska, Public International Law (4th edn, Routledge 2010) 147; Donald R
Rothwell et. al., International Law: Cases and Materials with Australian Perspectives (CUP
2011) 161; Gideon Boas, Public International Law: Contemporary Principles and Perspectives
(Edward Elgar Publishing 2012) 120.
2 Bianca Karim and Tirza Theunissen, ‘Bangladesh’ in Dinah Shelton (ed), International Law
and Domestic Legal Systems: Incorporation, Transformation, and Persuasion (OUP 2011) 98.
3 Emraan Azad, ‘Customary International Law’ in Mohammad Shahabuddin (ed), Bangladesh
and International Law (Routledge 2021) 61.
4 M Ekramul Haque, ‘Current International Legal Issues: Bangladesh’ (2017) 23 Asian Yearbook
of International Law 3–16.
DOI: 10.4324/9781003276814-4
The Constitution of Bangladesh and international law 45
Against this backdrop, this chapter explains how the Constitution envisages
the interface between international law and domestic law in Bangladesh. There
are two main theoretical questions in this regard: first, what is the status of
international law in a domestic legal system and, second, how is international
law given efect in a domestic legal order? The broad, difering approaches that
states adopt to address these questions are classified as dualism versus monism
in legal literature.5 With this dichotomy in view, the chapter begins with a brief
overview of the positioning of international law vis-à-vis the Constitution of
Bangladesh. It then provides an analysis of the status of international treaties
and customs within the constitutional normative framework of Bangladesh.
The following sections respectively discuss the modalities of domestic imple-
mentation and judicial invocation of international law. The chapter concludes
that, despite the absence of explicit constitutional provisions, the constitu-
tional design leaves no alternative to dualism for Bangladesh to follow.
International law and the debates over the making of the

Constitution
Both the terms, ‘international law’ and ‘treaty’ appear in the text of the Con-
stitution. The first reference to international law occurs in article 25 of the
Constitution, which provides that Bangladesh shall base its international rela-
tions, among others, on the principles enunciated in the UN Charter and re-
spect for international law.6 ‘International law’ appears for the second time in
article 47(3) of the Constitution. According to article 47(3), any law that pro-
vides for detention, prosecution, or punishment for genocide, crimes against
humanity or war crimes, and other crimes under international law will not
become void or invalid on the grounds of being inconsistent with the Consti-
tution.7 Article 47(3), therefore, makes it clear that the Constitution envisages
the application of ‘domestic law’ when it comes to the domestic implementa-
tion of any international legal norms concerning war crimes, crimes of geno-
cide, or other crimes under international law. Although article 47(3) is limited
to a specific branch of international law, the provision by implication indicates
that Bangladesh’s constitutional approach to international law is dualist.
The appearance of the term ‘treaty’ did not occur in the Constitution until
the insertion of article 145A by the Second Proclamation Order No. IV 1978,
which laid down that any international treaties with foreign countries should be
5 M Shah Alam, ‘Enforcement of International Human Rights Law by Domestic Courts: A

Theoretical and Practical Study’ (2006) 53(3) Netherlands International L Rev 399, 403–405;
Ridwanul Hoque and Mostafa M Naser, ‘The Judicial Invocation of International Human
Rights Law in Bangladesh: Questing a Better Approach’ (2006) 46 Indian J of International L
151, 153–163. See further Abdullah Al Faruque, ‘Judicial Invocation of International Law’, in
Mohammad Shahabuddin (ed), Bangladesh and International Law (Routledge 2021) 37.
6 The Constitution of the People’s Republic of Bangladesh 1972, art 25 (Bangladesh
Constitution).
7 ibid, arts 7 and 26.
46 Kawser Ahmed
placed before the parliament.8 However, the issue of the ratification of interna-
tional treaties arose before the Constituent Assembly.9 On 24 October 1972,
Mr Suranjit Sengupta, in his address to the Constituent Assembly, criticised
the draft Constitution for not having any provision concerning ratification of
treaties by parliament.10 Later, on 2 November 1972, Mr Sengupta proposed
the insertion of a new article (namely, article 65A) in the draft Constitution re-
quiring any treaty concluded with foreign countries to be submitted before the
parliament for approval, in order for such a treaty to have any binding efect.11
Mr Sengupta argued that the sovereignty of parliament would be compromised
if the executive authority was allowed to conclude treaties with foreign coun-
tries without the approval of the legislature.12 He further argued that the pub-
lic should have clear knowledge about international treaties subscribed to by
the nation so that they can express their opinion about those treaties.13 The
deputy speaker of the Constituent Assembly ruled out Mr Sengupta’s proposed
amendment without putting it on the vote, although such a provision would
surely add the values of participatory and deliberative democracy to Bangla-
desh’s treaty-making practice.14 As a result, the term treaty remained absent in
the Constitution as originally adopted on 4 November 1972. It is in this con-
text that the Appellate Division of the Supreme Court held in Kazi Mukhlesur
Rahman v Bangladesh that the treaty-making fell within the ambit of the execu-
tive power per article 55(2) of the Constitution even though this article does
not make any explicit reference to treaty-making power.15
The term treaty has not been defined in either the Constitution or in the
General Clauses Act 1897.16 Article 145A states that “all treaties with foreign
countries shall be submitted to the President, who shall cause them to be
laid before Parliament, provided that any such treaty connected with national
security shall be laid in a secret session of Parliament.”17 The Bengali text of
this provision makes it clear that “all treaties with foreign countries” actually
8 The Proclamation Order was a military decree. All changes to the Constitution by military
proclamations during the first military regime (1975–1979) were later ratified by the Consti-
tution (Fifth Amendment) Act, 1979. Article 145A was reincorporated again by the Constitu-
tion (Fifteenth Amendment) Act, 2011.
9 The Constituent Assembly was established under the Constituent Assembly of Bangladesh Or-
der 1972 for the purpose of adopting a Constitution for Bangladesh.
10 Kawser Ahmed (ed), Proceedings of the Constituent Assembly of Bangladesh: Debates on the
Making of the Constitution, vol 1 (Pencil Publications 2021) 203.
11 Kawser Ahmed (ed), Proceedings of the Constituent Assembly of Bangladesh: Debates on the
Making of the Constitution, vol 2 (Pencil Publications 2022) 163.
12 ibid.
13 ibid.
14 ibid 164.
15 (1974) 26 DLR (SC) 44, 54 and 58, paras 23 and 38.
16 On the definition of a treaty, see the Vienna Convention on the Law of Treaties 1969, art 2(1)
(a) (The VCLT).
17 On the meaning of “all treaties with foreign countries,” see Mahmudul Islam, Constitutional
Law of Bangladesh (3rd edn, Mullick Brothers 2012) 1025; and Shahnaz Huda and Manzoor
means all treaties made with foreign countries.18 Article 145A does not ex-
pressly provide the executive branch with the power to enter into international
treaties. Despite this omission, the treaty-making power has been traditionally
exercised by the executive branch from the beginning.19
The status of international law in the Constitution

Scholars are largely in agreement that Bangladesh follows dualism in the do-
mestic application of international law,20 although there is a diference of opin-
ions about why the legal system of Bangladesh adheres to the dualist approach.
According to Karzon and Faruque, while Bangladesh adheres to dualism
regarding the domestic implementation of international treaties, the status of
treaties in the domestic legal system remains largely unsettled in the absence
of explicit constitutional provisions.21 To them, during the British colonial pe-
riod, courts followed the dualistic common law tradition regarding the status
of international law, which continued after decolonisation in 1947 during the
Pakistani era.22 Article 149 of the Constitution provides for the continuity of
the ‘existing laws.’ Before the commencement of the Constitution (16 Decem-
ber 1972), the Laws Continuance Enforcement Order 1971 similarly provided
for the continuity of the existing laws. Article 152 of the Constitution defines
‘existing law’ as any law in force in, or any part of, the territory of Bangladesh
immediately before the commencement of this Constitution.23 Karzon and
Faruque have argued that the term existing law includes the English common
Hossain, The Bangladesh Parliament and International Conventions (Bangladesh Institute of

Parliamentary Studies 2000) 33–35.
18 Kawser Ahmed, ‘Pandemic, Emergency & the Bangladesh Constitution: A Reflection’ (IACL-
AIDC Blog, 2 June 2020) <https://blog-iacl-aidc.org/2020-posts/2020/7/2/pandemic-
emergency-amp-the-bangladesh-constitution-a-reflection> accessed 22 March 2022.
19 For example, article 7(2) of the VCLT provides that the Heads of State, the Heads of Gov-
ernment, and the Ministers for Foreign Afairs can ex ofcio perform all acts relating to the
conclusion of a treaty. Hence, the international and national practice, taken together, can be
interpreted to have efectively allocated the treaty-making power to the executive branch of
the government.
20 See, generally, Syed Mynuddin Hussain and Mohammed Mahbubul Haque Joarder, ‘Status of
International Law in Bangladesh Courts’ (1984) 7(2) Law and International Afairs 67, 77;
Sheikh Hafizur Rahman Karzon and Abdullah-Al-Faruque, ‘Status of International Law under
the Constitution of Bangladesh’ (1999) 3(1) Bangladesh J of Law 23; Sumaiya Khair, ‘Bring-
ing International Human Rights Law Home: Trends and Practices of Bangladeshi Courts’
(2011) 17 Asian Yearbook of International L 47, 50; Hoque and Naser (n 5) 166–169; Kamal
Hossain and Sharif Bhuiyan, ‘Bangladesh’ in Simon Chesterman, Hisashi Owada, and Ben
Saul (eds), International Law in Asia and the Pacific (OUP 2019) 604, 606–610; M Al-Ifran
Hossain Mollah, ‘The Law of Treaties and Treaty Reservations’ in Mohammad Shahabuddin
(ed), Bangladesh and International Law (Routledge 2021) 72, 73; Azad (n 3).
21 Karzon and Faruque (n 20) 47.
22 ibid 26. Notably, Karzon and Faruque did not substantiate the reasons behind their claim.
23 Bangladesh Constitution, art 152.
48 Kawser Ahmed
law tradition which was adopted as the law of Bangladesh under article 149
and enforced through the judicial decisions before the Constitution came into
force.24 Additionally, according to Karzon and Faruque, judicial decisions have
clarified that customary international law (CIL) forms part of Bangladeshi
laws provided that any given CIL norm is not contrary to the Constitution or
the statutory law.25
In a 2019 essay, Hossain and Bhuiyan arrived at a somewhat similar conclu-
sion albeit via diferent arguments.26 Unlike Karzon and Faruque, they have
argued that although the Constitution or any statute has not provided any
specific provision on the domestic application of international law, several judi-
cial decisions settle that Bangladesh follows the dualist approach to the domes-
tic application of international treaties.27 In respect of customary international
law, Hossain and Bhuiyan think that Bangladeshi courts should follow the
English common law (constitutional law) principle that CIL automatically
forms part of Bangladeshi law as long as there is no inconsistent domestic
legal provision.28
Karzon and Faruque’s explanation that Bangladesh’s adherence to dual-
ism stems from the influence of English common law tradition internalised
through the constitutional incorporation of all ‘existing laws’ in the domestic
law looks farfetched because no such intention of the framers can be identi-
fied from deliberations in the Constituent Assembly and also because the term
existing law in the Constitution arguably refers to all laws that were in force
immediately before Bangladesh’s independence on 26 March 1971, and not to
any tradition.29 On the other hand, Hossain and Bhuiyan’s argument, mostly
based on the Kazi Mukhlesur Rahman case, that the constitutional silence
about the domestic application of international treaties was settled by judicial
decisions does not bear extra force because Bangladesh has been following the
practice of dualism all along. For example, in 1973, Bangladesh enacted the
Asian Development Bank Order 197330 for the implementation of the Agree-
ment establishing the Asian Development Bank in 1965. In Kazi Mukhlesur
Rahman, in 1974, the Court did not decide any question of domestic imple-
mentation of international treaties; it merely endorsed the prevailing treaty-
making practice by the executive branch of the government.
More importantly, the aforementioned views miss one vital point, which
is that the Constitution is the supreme law as well as the single source of
24 See Karzon and Faruque (n 20) 27.

25 ibid 28–34 and 47.
26 Hossain and Bhuiyan (n 20) 604.
27 ibid 606.
28 ibid. In this regard, Hoque and Naser’s position can be described as a blending of the views of
Karzon et al and Kamal Hossain et. al. See Hoque and Naser (n 5) 166.
29 Before its incorporation in the Constitution, the term existing law was defined in section 2 of
the Bangladesh (Adaptation of Existing Laws) Order 1972 (President’s Order No. 3 of 1972)
as any Act, Ordinance, Regulation, Rule, Order, or By-law.
30 President’s Order No. 3 of 1973.
legitimacy of legal order in Bangladesh. Therefore, any explanation of the

relationship between Bangladesh’s domestic law and international law must
necessarily be derived from the Constitution, even when there are no explicit
constitutional provisions on the subject. The question should be asked why
the courts or the administrative agencies in Bangladesh do not enforce or
implement international treaty provisions directly, despite that they are not
expressly barred from doing so by the Constitution. Against this backdrop, it
is worth undertaking a fresh investigation into the relationship between do-
mestic and international law in Bangladesh.
The most fundamental issue concerning the status of international law in
any given jurisdiction is enforceability. The classification of states under the
so-called dualism or monism is based on the issue of enforceability of interna-
tional law in the domestic sphere. International law does not define the rela-
tionship between domestic law and international law. Rather, the legal system
of a country determines the modality of such a relationship.31 Since the Con-
stitution is the grand source of legitimacy in the legal system of Bangladesh,
determining the status of international law will require a critical investigation
into the theory of legislation in the light of the Bangladesh Constitution. By
‘theory of legislation,’32 I mean the constitutional normative framework by
which it identifies what body of norms is to be recognised as laws in Bang-
ladesh.33 The issue of administrative implementation or the enforcement34 of
international law arises once any international legal norm or rule conforms to
such theory of legislation and attains the status of law. To determine any such
constitutional normative framework, a structural analysis of the Constitution
of Bangladesh is required.
The preamble of the Constitution declares that it shall be a fundamental
aim of the state to secure, among others, the rule of law for all citizens. Ac-
cording to the Constitution, the state comprises the parliament, the gov-
ernment, and the statutory public authorities.35 While the parliament and
the government36 are the creations of the Constitution, the statutory public
authorities are created under the authority of statutes. Their functions are
determined according to the Constitution and the other laws of the country.
Furthermore, the Constitution provides that every citizen of Bangladesh has
31 See Paola Gaeta, Jorge E Viñuales, and Salvatore Zappalá, Cassese’s International Law (3rd
edn, OUP 2020) 224–225.
32 Ronald Dworkin, Taking Rights Seriously (HUP 1978) vii–viii.
33 HLA Hart, The Concept of Law (OUP 1994) 94–95.
34 By ‘enforcement’, I mean judicial measures giving efect to international law.
36 Traditionally, the term government includes all three branches namely, the legislature, the
judiciary, and the executive. See HC Black, JR Nolan, and JM Nolan-Haley, ‘Government’
in Black’s Law Dictionary (6th edn, West Publishing Co 1990) 695. However, since the
definition of ‘state’ in article 152 of Bangladesh’s Constitution separately mentions ‘parlia-
ment’, the term government, therefore, should be understood to mean the executive and the
judiciary only.
50 Kawser Ahmed
an inalienable right to be treated in accordance with the law.37 Additionally,

the branches and the agencies of the government are obliged to perform
functions subject to the Constitution and the laws made or recognised there-
under. The Constitution is the supreme law of the land and any other law
inconsistent with it is void.38 Article 152(1) of the Constitution defines the
term law as any Act, ordinance, order, rule, regulation, by-law, notification,
or other legal instruments, and any custom or usage, having the force of law
in Bangladesh. These terms have well-defined meaning in the legal system of
Bangladesh, and they do not include international treaties.39 The Constitu-
tion does not recognise international treaties as a source of domestic law in
Bangladesh.
Now the question is whether it is the executive or the judiciary that can
directly apply treaties in the discharge of their functions under the Constitu-
tion. There is no denying that treaty-making power falls within the ambit
of the executive power of the government. However, the fact that treaty-
making power is vested in the executive branch does not make it entitled
to implement treaties directly in the domestic sphere because, according to
article 55(2) of the Constitution, the executive powers are subject to the
Constitution that excludes international treaties as a source of domestic law.
The resultant efect is that the administrative implementation of international
treaties in Bangladesh cannot be carried out in the absence of any enabling
domestic legislation. In the same vein, the establishment and jurisdiction of
courts and tribunals are governed by the Constitution and the laws of the
country.40 For instance, article 101 of the Constitution, which deals with
the powers and functions of the Supreme Court, provides that the Supreme
Court shall have such jurisdiction and powers as are conferred on it by the
Constitution and the domestic law. Thus, the Constitution does not envisage
that the courts and tribunals in Bangladesh will directly enforce international
treaties in Bangladesh. The aforesaid analysis makes it clear that international
treaties cannot be applied directly by any branch of the government in the
absence of implementing domestic legislation under the constitutional nor-
mative framework of Bangladesh.
However, to what extent the foregoing analysis applies to CIL would be an
open question. Although no court has ever applied CIL,41 there is a tacit judi-
cial endorsement that CIL forms part of the corpus juris of Bangladesh so long

38 ibid art 7(2).
39 Most of these terms have been defined either in the Constitution or the General Clauses Act
1897.
40 Article 94 of the Constitution provides for establishment of the Supreme Court. Besides,
articles 114 and 117 respectively provide for the establishment by law of subordinate courts
and administrative tribunals.
41 See Bangladesh Legal Aid and Services Trust v Bangladesh (2011) 63 DLR (HCD) 1, 8–9,
paras 37–40 (the BLAST). Also see Hossain and Bhuiyan (n 20) 614.
as it is not inconsistent with domestic law.42 Although the Supreme Court in the
BLAST case recognised the prohibition of torture as a CIL norm, it remained
silent about the status of CIL norms generally in the legal system of Bangladesh
and decided the case based on domestic law alone.43 The other branches of the
government do not seem to have ever held any contrary views.44 The problem
is that the Supreme Court did not explain why and how CIL should be recog-
nised as part of the laws of Bangladesh. In this regard, Karzon and Faruque’s
argument that CIL forms part of Bangladeshi laws through judicial decisions
appears unsupported by evidence, because the two cases that they relied on
(Bangladesh v Unamarayen SA Panama45 and Bangladesh v Somboon Asava-
ham46) did not embark on any discussion about the relationship between CIL
and domestic law of Bangladesh. While, in the former, the Court said nothing
about CIL, the Appellate Division in the latter case commented that “where
there is municipal law on an international subject, the national court’s function
is to enforce the municipal law within the plain meaning of the statute.”47
To overcome the problem of inarticulation of the relationship between CIL
and domestic law, one solution could be to interpret the word custom in article
152 of the Constitution in an inclusive manner to cover CIL. No doubt, the
determination of whether a CIL norm exists at all depends on the evidence,
and that task belongs to international actors. At the domestic level, the Su-
preme Court will require a method by which the existence of any CIL norms
can be proved. Needless to say, the identification of CIL has been one of the
most complex tasks before the international courts and tribunals. The Evi-
dence Act 1872 contains a few provisions dealing with how the existence of a
custom may be proved before the Court.48 There is no reason not to extend
the applicability of the Evidence Act to prove the existence of international
customs with some necessary adaptations.
Modalities of domestic implementation of international

law in Bangladesh
The Constitution of Bangladesh does not provide for any particular class of
municipal law as necessary for the domestic implementation of international
42 See Chief Prosecutor v Abdul Quader Molla (2014) 22 BLT (AD) 8, 73, para 125. In the
majority opinion, the Appellate Division noted: “there remains no doubt that the Act of 1973
has primacy over [CIL] and [CIL] will be applicable so far as it is not inconsistent with the
Act.’ Cf Hossain and Bhuiyan (n 20) 615.
43 The BLAST (n 41).
44 Initial Report of Bangladesh on the International Covenant on Civil and Political Rights
(CCPR/C/BGD/1), para 8.
45 (1977) 29 DLR (HCD) 252. The name of the respondent has appeared as ‘Unimarine S.A.
Panama’ in the Appellate Division’s judgment and in several scholarly works.
46 (1980) 32 DLR (AD) 194 (Somboon Asavaham).
47 ibid 197–198, para 6.
48 The Evidence Act 1872, ss 13, 32 and 48.
52 Kawser Ahmed
law. As a result, international law can be implemented in Bangladesh through

both primary legislation and secondary legislation as well as the Constitu-
tion.49 The Government of Bangladesh, in its several initial state party re-
ports under certain international human rights treaties, has simply mentioned
that the Constitution together with other laws gives efect to those treaties in
the domestic sphere.50 In this connection, an interesting case in point would
be the implementation of the measures adopted by the Security Council un-
der article 41 of the UN Charter through a mixed regime comprising both
primary legislation and secondary legislation. The United Nations (Security
Council) Act 1948, a piece of primary legislation, empowers the government
to implement such measures by an order published in the Ofcial Gazette, that
is, through secondary legislation.51
The Constitution also does not require the enactment of specific legisla-
tion each time a new treaty is concluded. Laws already in force may sufce to
implement treaties made at a later point in time if their respective mandates
coincide. Moreover, a particular piece of legislation may be designed to imple-
ment multiple treaties.52 By contrast, a particular treaty can be implemented
through multiple legislations. For example, the Constitution along with other
laws gives efect to the provisions of the Convention Against Torture and
Other Cruel, Inhuman or Degrading Treatment or Punishment (UNCAT) in
Bangladesh.53 It is also not required that the implementing legislation should
expressly mention which international law it intends to give efect to. Never-
theless, the parliament in recent years has passed several legislations specifying
in their preambles the international treaties they intend to implement.54 Inter-
estingly, the Overseas Employment and Migrants Act 2013 mentions several
international treaties in its preamble but, in practice, does not implement any
of them in full.
Lastly, I turn to the question of whether the courts of Bangladesh can de-
clare any norms of international law as part of the corpus juris of the state and
then enforce it. Article 111 of the Constitution provides: “The law declared
by the Appellate Division shall be binding on the High Court Division and the
law declared by either division of the Supreme Court shall be binding on all
49 Hossain and Bhuiyan (n 20).

50 CCPR/C/BGD/1 (n 44) paras 15 and 18; Initial Report of Bangladesh on the Interna-
tional Covenant on Economic, Social and Cultural Rights (E/C.12/BGD/1) para 19; Initial
Report of Bangladesh on the Convention Against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment (CAT/C/BGD/1) paras 8–12.
51 The United Nations (Security Council) Act 1948, s 2. A more recent example includes the
Anti-Terrorism Act 2009 and the Anti-Terrorism Rules 2013.
52 As examples, the Bangladesh Labour Act 2006 and the Anti-Terrorism Act 2009 may be
mentioned.
53 CAT/C/BGD/1 (n 50) para 5. See also Bangladesh Constitution, art 35; and the Torture and
Custodial Death (Prohibition) Act 2013.
54 For example, the Children Act 2013 claims to give efect to the UNCRC, and the Rights and
Protection of the Persons with Disabilities Act 2013 claims to give efect to the UNCRPD.
courts subordinate to it.” Arguably, the language of article 111 leans towards
the declaratory theory of precedent, which means the decisions of the judges
do not derive from their law-making power; they only constitute evidence of
what the law is.55 In other words, judges in Bangladesh are not supposed to
make law but only to find it.56 There are cases where the Appellate Division of
the Supreme Court has upheld this position and recognised that the plenary
legislative power lies with the parliament alone. For example, although the
High Court Division in Human Rights and Peace for Bangladesh v Bangladesh
declared ‘the Precautionary Principle’ and ‘the Polluter Pays Principle’ as part
of the corpus juris of Bangladesh,57 the Appellate Division on appeal over-
turned that ruling on the ground that it was absolutely within the domain of
parliament to enact or amend laws under the Constitution to incorporate such
principles of international environmental law.58
Judicial invocation of international law in Bangladesh

It has already been argued that the Constitution does not envisage interna-
tional treaties as a source of domestic law and that the application of interna-
tional treaties requires implementing legislation. Despite such constitutional
limitations, the Supreme Court did not shy away from referring to or citing
international treaties in its judgments from time to time. Therefore, the ques-
tion arises as to what extent the judiciary can ‘draw upon’59 international law in
the discharge of its functions. The answer to this theoretical yet constitutional
question may be demystified by evaluating the judgments of the Supreme
Court.
The first and foremost approach is that where there is municipal law on an
international subject, the national court’s function is to enforce the municipal
law within the plain meaning of the statute.60 The second approach is that al-
though the courts will not enforce international treaties unless these are incor-
porated into municipal laws, they can use them as an aid to the interpretation
of domestic law.61 In Sheikh Hasina, the Appellate Division held that Bangla-
deshi courts “will not enforce the covenants and convention even if ratified by
the State unless these are incorporated in municipal laws.”62 In this case, the
55 Rupert Cross and JW Harris, Precedent in English Law (OUP 2004) 25.
56 M Rizwanul Islam, ‘Judges as Legislators: Benevolent Exercise of Powers by the Higher Judici-
ary in Bangladesh with Not So Benevolent Consequences’ (2016) 16 OUCLJ 219, 220–221.
57 Human Rights & Peace for Bangladesh v Bangladesh (2019) WP No 13989/2016, at 279 of
the judgment (the HRPB) (HCD’s judgment delivered on 30 January and 3 February 2019).
58 Nishat Jute Mills Limited v Human Rights and Peace for Bangladesh (HRPB), Appellate Divi-
sion, CPLA No. 3039 of 2019, judgment delivered on 17 February 2020, at 35–37.
59 Somboon Asavaham (n 46); Hussain Muhammad Ershad v Bangladesh (2001) 21 BLD (AD)
69, 70.
60 Ershad (n 59) 74–75, para 12 (AM Mahmudur Rahman J).
61 The BLAST (n 41) 8, para 38. Bangladesh v Sheikh Hasina (2008) 28 BLD (AD) 163.
62 Sheikh Hasina (n 61) 181, para 90.
54 Kawser Ahmed
Court, however, noted that it would look into the ICCPR and other relevant
conventions “while interpreting the provisions of part III [of the Constitution]
to determine [the scope of the] right to life, right to liberty and other rights
enumerated in the Constitution.”63 Arguably, the third approach is to treat, in
an appropriate case, international customary law principles as part of domestic
law.64 In the HRPB, the High Court Division declared ‘the Precautionary Prin-
ciple’ and ‘the Polluter Pays Principle’ as part of the corpus juris of the state,65
although the declaration was later overruled by the Appellate Division.66
At this juncture, to what extent the invocation of international treaties ei-
ther by the parties or the Supreme Court itself has influenced the outcome
of a case is worth examining. A careful reading of most of the reported judg-
ments of the Supreme Court does not demonstrate any direct nexus between
the Court’s treatment of international treaties and the outcome of the cases.
For instance, in BLAST67 and Bangladesh National Women Lawyers Association
(BNWLA) v Bangladesh,68 directions were sought from the Supreme Court for
the adoption of guidelines/policies respectively for preventing extra-judicial
punishments and sexual harassment of women and girls at workplaces and ed-
ucational institutions. In both cases, the Court cited several international trea-
ties and then remarked that it would not enforce international treaties as they
were not part of the corpus juris of the state, however, would look into these
conventions and covenants as an aid to interpreting the domestic law of the
country.69 Similarly, in the State v Md Roushan Mondal,70 the Supreme Court
dealt with the conviction and death sentence of a minor boy for his alleged
commission of rape and murder of a minor girl. Although the Court referred
to some provisions of the Convention on the Rights of the Child (UNCRC) in
its judgment, it set aside the conviction and sentence mainly on the grounds of
lack of jurisdiction of the trial court for its non-compliance with the Children
Act 1974.71 In the case of Saiful Islam Dildar v Bangladesh,72 the petitioner
63 ibid. Cf Professor M Samsul Alam v Bangladesh (2018) 10 SCOB (HCD) 205, 229–230, paras
75–77.
64 The HRPB (n 57) 279.
65 ibid.
66 Nishat Jute Mills Limited (n 58). Many authors maintain that ‘the precautionary and the pol-
luter pays principles’ have become CIL norms. See Alan Boyle, ‘Southern Bluefin Tuna Cases’,
Max Planck Encyclopedias of International Law [MPIL] (2008) para 9 <https://opil.ouplaw.
com/view/10.1093/law:epil/9780199231690/law-9780199231690-e210> accessed 26
April 2022; Svitlana Kravchenko, Tareq MR Chowdhury, and MJH Bhuiyan, ‘Principles of
International Environmental Law’ in Shawkat Alam et al. (eds), Routledge Handbook of Inter-
national Environmental Law (Routledge 2014) 43, 53.
67 The BLAST (n 41) 2, para 2.
68 (2009) 29 BLD (HCD) 415, 416, para 1 (the BNWLA).
69 The BLAST (n 41) 8, para 38; the BNWLA (n 68) 425, para 35.
70 (2006) 26 BLD (HCD) 549, 577, para 77 (Roushan Mondal).
71 ibid 578, para 77. The other reason cited was insufcient evidence on record to prove the
charge.
72 (1998) 50 DLR (HCD) 318, 324, para 7.
sought to stop the deportation to the Indian authorities of Mr Anup Chetia,

the secretary-general of the United Liberation Front of Assam (ULFA), who
was charged with treason in India. The petitioner inter alia argued that Mr
Chetia was fighting for the right of self-determination of the Assamese people,
which had evolved as a principle of international law. He relied particularly on
the jus cogens nature of the right of self-determination.73 In fine, the petitioner
submitted that Bangladesh had a legal obligation to grant him a refugee status
(political asylum) under international law, emphasising that Mr Chetia’s extra-
dition would violate international law and articles 25, 31, 32, and 145A of the
Constitution.74 Given that self-determination is a core principle of CIL, what
was not clear from the petitioner’s submission is how the purported extradi-
tion of Mr Chetia would violate the right of self-determination of the people
of Assam, which refers to a collective right of a people. The Court, in its turn,
pointed out that the expression ‘self-determination’ does not occur in article
25 of the Constitution. The Court dismissed the petition on the domestic law
consideration namely, the Special Powers Act 1974 and the Extradition Act
1974. It did not address the petitioner’s submission that Bangladesh had a
legal obligation to grant Mr Chetia refugee status under international law.75
In several cases, the Supreme Court has referred to non-binding soft instru-
ments such as declarations, UN resolutions, recommendations, guidelines, and
so on if they were thought to have any persuasive authority.76 This trend has
been best portrayed in the case of Hussain Muhammad Ershad v Bangladesh.77
The appellant, in this case, challenged the confiscation of his passport on the
grounds of violation of fundamental rights as well as article 13 of the Universal
Declaration of Human Rights (UDHR). Justice AM Mahmudur Rahman who
wrote the majority opinion reasoned that the UDHR was not a part of munici-
pal law and, therefore, was not binding.78 On the contrary, Justice Bimalendu
Bikash Roy Choudhury in his separate opinion argued that article 13 of the
UDHR having been recognised in article 36 of the Constitution applied to
the facts of the case.79 While Justice Rahman and Justice Choudhury held mu-
tually exclusive opinions, Latifur Rahman, the chief justice, agreed with them
both, without ofering any reasoning at all.80
Also, it appears that there are cases in which the Supreme Court should
have been more careful in mentioning international legal terminologies and
73 ibid 319, paras 3–4.

74 ibid 319, 322, paras 3, 6.
75 ibid 322–324, paras 6–7.
76 See the BNWLA (n 68) 424, para 33; Ershad (n 59) para 3; Professor Nurul Islam v Bangladesh
(2000) 20 BLD (HCD) 377, 386, para 9; Dr Shipra Chaudhury v Bangladesh (2009) 29 BLD
(HCD) 183, 186, para 24.
77 Ershad (n 59).
78 ibid 74–75, para 12. Bangladesh was not yet a party to the ICCPR when the case was decided.
79 ibid 70, para 3.
80 ibid (per Latifur Rahman CJ).
56 Kawser Ahmed
concepts in the judgments. For example, the Court has mentioned Bangladesh
as a ‘signatory’ vis-à-vis certain treaties in several cases whereas Bangladesh is
a ‘party’ to those treaties.81 The diference between a ‘party’ and a ‘signatory’
is that while the former denotes a state which has consented, via ratification,
accession, etc, to be bound by a treaty, the latter generally signifies that a state
that may formally assume the treaty obligations in the future subject to the
ratification of the treaty concerned.82 In the BLAST case,83 the Supreme Court
characterised the infliction of lashes on a woman by some village leaders/opin-
ionators as a form of ‘torture’ under the UNCAT and the International Cov-
enant on Civil and Political Rights (ICCPR), overlooking the fact that the two
treaties do not conceive of torture in the same manner.84 Especially, it begs the
question of whether the infliction of lashes by persons who are not themselves
public ofcials nor did ostensibly commit the alleged act at the instigation of
any public ofcial constitutes torture under the UNCAT.
It is also noticeable that the Court, while referring to treaty provisions,
sometimes omitted to take account of Bangladesh’s reservations and objec-
tions of other states (if any) to those reservations.85 For example, the Court’s
reference to article 16 of the Convention on the Elimination of All Forms
of Discrimination Against Women (CEDAW) in Dr Shipra Chaudhury could
have been couched in a diferent language had it considered Bangladesh’s res-
ervation to paragraph 1(c) of the said provision.86 Moreover, the Court, in
some cases, omitted to mention international treaties which were more di-
rectly relevant to the subject matter of the case. For example, the reference to
UNCAT would have been more relevant than CEDAW in the BNWLA case
because of the subject matter of the case (i.e., sexual harassment of women and
girl children at workplaces and educational institutions).87
Conclusion
The relationship between domestic law and international law in Bangladesh,
despite the absence of any specific constitutional provision regarding the
81 See Professor Nurul Islam (n 76) 397 para 20; Dr Shipra Chaudhury (n 76) 186, para 23;
Roushan Mondal (n 70) 572, para 67; State v Metropolitan Police Commissioner (2008) 60
DLR (HCD) 660, 665, para 27. See also Hoque and Naser (n 5) fn 45.
82 The VCLT, art 2(1)(g). See, e.g., The United Nations, Treaty Handbook (eISBN-13 978-92-
1-055293-6, U.N. Sales No. E.12.V.1, 2012) 5.
83 The BLAST (n 41) 3, para 5.
84 See Human Rights Committee, General Comment No. 20: Article 7 (Prohibition of Torture,
or Other Cruel, Inhuman or Degrading Treatment or Punishment) (44th Session, 1992) pa-
ras 2–4 and 13. See generally, Nigel S Rodley, ‘The Definition(s) of Torture in International
Law’ (2002) 55(1) Current Legal Problems 467.
85 Kawser Ahmed, ‘Reservations to Human Rights Treaties: Doubtful Commitment to Human
Rights’, The Daily Star (Dhaka, 13 December 2016) 12.
86 Dr Shipra Chaudhury (n 76) 186, para 23.
87 The BNWLA (n 68) 423–424, paras 28–30.
subject, is not unclear. Based on the structural and purposive interpretation

of the Constitution, it has been argued in this chapter that the constitutional
design leaves no choice for Bangladesh but to follow dualism. The analyses of
Constituent Assembly debates, legislative practice, and judicial decisions show
that neither does the constitutional normative framework approve of interna-
tional treaties as a source of domestic law, nor has the judiciary directly ap-
plied international treaties. Consequently, the chapter strongly disagrees with
the view that Bangladesh is inching towards ‘creeping monism’ in its practice
regarding the implementation of international law.88
88 Haque (n 4).
4 Secularism and Islam as the
state religion
Conflict or coexistence?
Muhammad Rezaur Rahman
Introduction
The constitutional principle of secularism, as adopted by Bangladesh’s found-
ing Constitution, went through a tumultuous history. It took a complicated
turn in 2011 as the 15th constitutional amendment reinstated secularism
while retaining Islam as the state religion.1 This led to a debate about whether
secularism can coexist with the state religion or whether the arrangement re-
sults in an irreconcilable conflict between secularism and state religion. This
chapter attempts to critically capture the narratives of the coexistence and the
conflict of secularism and state religion. Instead of justifying a particular po-
sition, the chapter dialogically explores the arguments from both sides and
examines their strengths and limitations. It shows that while the arguments
are persuasive, they are not irrefutable. The chapter identifies some key factors
that recurrently reinforced this debate, such as national identity, the binary
between the secular and the religious, ambiguity in the meaning of secularism,
and parochial understanding of the sociopolitical role of religion. The chapter
argues that a viable coexistence between the two principles remains unsettled
unless these fundamental factors are resolved. As such, the chapter seeks to
provoke a new discourse to address debates relating to national identity, secu-
larism, and a religion’s role in public life.
In retrospect: from secularism to coexistence of state religion

and secularism
Establishing a secular polity was a key motive behind Bangladesh’s emancipa-
tion from the West Pakistani quasi-colonisation. For West Pakistan, Islamic
identity was considered the unifying national bond.2 West Pakistani’s denial of
Bengali cultural identity sparked the language movement from 1947–1952,
1 The Constitution (Fifteenth Amendment) Act 2011.

2 Muhammad Rezaur Rahman, ‘The Introduction of Religion to Politics and the Constitutional
Framework and the Aftermath: A Critical Overview of the History of Pre and Post Bangladesh
Eras’ 21 <https://bit.ly/3xExLO> accessed 5 June 2022.
DOI: 10.4324/9781003276814-5
Secularism and Islam as the state religion 59
initiated a [secular] linguistic Bangalee nationalism, and led to the liberation

war in 1971. Secularism is, therefore, arguably rooted in composite Bengali
culture and is meant to be ‘the repudiation of an Islamic ideology used to
legitimise the West Pakistani colonial domination.’3
Some critics have questioned this secular origin of national identity and
argued that secularism was an imposition of the political elites and vernacu-
lar intelligentsia4 on the Muslim community, whose identity remained deeply
rooted in Islam.5 Some claim that Bangladesh adopted secularism to enhance
good relations with India.6 The Bangladesh Awami League’s (AL) 1970 elec-
tion manifesto contributed to this debate, which guaranteed the inclusion of
special constitutional protection of the Islamic law of the Holy Qur’an and the
Sunnah against the state law.7
It may be contended that Ayub Khan’s Legal Framework Order 1970 (LFO)
mandated all the parties to include such a pledge to protect Islam and religious
institutions.8 The critics pointed out that it is not only the Islamic overtone of
the 1954 and 1970 manifesto; indeed, there was no reflection on secularism in
any pre-independence documents – six-point demands, eleven-point student
demands or the Proclamation of Independence.9
However, AL leaders, including Syed Nazrul Islam and Tajuddin Ahmad,
in their speeches during Muktijuddho (1971 war of liberation), repeatedly
declared secularism as a primary state policy.10 Bangabandhu, upon return-
ing from Pakistani prison on 10 January 1972, publicly proclaimed (at Race-
course) secularism to be Bangladesh’s core state principle.11
The process of constitutionalising secularism involved extensive debate in
the Constituent Assembly (CA).12 The CA members debated whether secu-
larism is an appropriate founding principle for Bangladesh, given that Islam
3 Donald E Smith, ‘Secularization in Bangladesh’ (1973) 16 Worldview 11, 15.

4 Tazeen M Murshid, The Sacred and the Secular: Bengal Muslim Discourses, 1871–1977 (Oxford
5 Howard Schuman, ‘A Note on the Rapid Rise of Mass Bengali Nationalism in East Pakistan’
(1972) 78 Am. J. Soc. 290.
6 MJH Bhuiyan, ‘The Contested Concept of Secularism and Bangladesh’ (2022) 69(3) Am. J.
Comp. L. 399.
7 The Awami League Manifesto is reprinted at (1971) 4 NYU J Int’l L & Pol 524 (see at p
526). Also, the 1954 United Front election manifesto had explicitly recognised the protection
of Islamic ideology. See MN Islam and MS Islam, ‘Islam, Politics and Secularism in Bangla-
desh: Contesting the Dominant Narratives’ (2018) 7 Social Sciences 37, 8.
8 Kevin YL Tan and Ridwanul Hoque (eds), Constitutional Foundings in South Asia (Hart
Publishing 2021) 99.
9 Islam and Islam (n 7) 8.
10 Anisuzzaman, Identity, Religion, and Recent History: Four Lectures on Bangladesh Society
(Maulana Abul Kalam Azad Institute of Asian Studies 1995) 37.
11 Rounaq Jahan, ‘Bangladesh in 1972: Nation Building in a New State’ (1973) 13 Asian Survey
199, 201.
12 Tan and Hoque (n 8) 111.
60 Muhammad Rezaur Rahman
is the religion of the majority.13 Bangabandhu was aware of the religiosity in

Bangladesh and made it clear in the CA speeches that secularism would not
mean the absence of religion. Instead, secularism was to eliminate communal
politics and any form of exploitation in the name of religion.14 Finally, dhormo
niropekkhota, translated as secularism, was incorporated in the 1972 Consti-
tution in article 12 as one of the fundamental principles of state policy. The
original article 12 states:
The principle of secularism shall be realised by the elimination of – (a)

communalism in all its forms; (b) the granting by the State of political
status in favour of any religion; (c) the abuse of religion for political pur-
poses; (d) any discrimination against, or persecution of, persons practis-
ing a particular religion.
Other legal and social reforms concerning religion were in the making si-
multaneously. The original article 38 banned religious political parties; the
national radio and Bangladesh Television stopped broadcasting Qur’anic reci-
tation; and the Islamic Academy was abolished.15
However, secularism’s constitutional inclusion did not go unchallenged.
There was a public procession against secularism.16 The discontent against
AL and secularism gradually grew. From late 1972, the AL started to become
unpopular due to the country’s poor socioeconomic conditions, deteriorating
law and order situation, and rising corruption, and secularism lost ground due
to the ruling elite’s inability to communicate secularism’s translatable meaning
and significance to the ordinary people.17 Despite explaining that secularism is
not irreligiosity, Bangabandhu failed to counter anti-secularist propaganda or
increase secularism’s acceptance.
From 1973, Bangabandhu’s attitude towards religion also changed notice-
ably. Although a strenuous supporter of secularism, his political rhetoric encap-
sulated Islamic idioms. This change was a strategy to gain political recognition
and economic cooperation with wealthy Middle Eastern and North African
countries.18
Following Bangabandhu’s assassination in August 1975, Bangladesh wit-
nessed several military coup d’états, culminating in General Ziaur Rahman’s as-
sumption of power in 1976. Through the 5th Amendment (1977), Zia replaced
secularism and Bangalee nationalism with absolute faith and trust in almighty
13 ibid.
14 ibid.
15 Bhuiyan (n 6) 423.
16 Lailufar Yasmin, ‘The Tussle between Secularism and Non-Secularism in Bangladesh’ (2013)
South Asian Journal 66, 68.
17 Muhammad A Hakim, ‘The Use of Islam as a Political Legitimization Tool: The Bangladesh
Experience, 1972–1990’ (1998) 6 Asian J. Pol Sc 98, 104.
18 Muhammad Rezaur Rahman, ‘Country Report on Religious Diversity and Violent Religious
Radicalization in Bangladesh’, 21 <https://cutt.ly/0FMSPtz> accessed 9 April 2022.
Allah and Bangladeshi nationalism. Zia’s manoeuvre attempted to distinguish

the Bangladeshi (Muslim) people from Indian (Hindu) Bangalees.19 He also
inserted the Islamic invocation Bismillah-ar-rahman-ar-Rahim above the con-
stitutional preamble and incorporated a new article 25 envisaging Bangladesh’s
endeavour to develop and strengthen fraternity with Muslim countries based
on Islamic solidarity. Zia removed the ban on religious political parties as well.
Following Zia’s assassination, General Hossain Muhammad Ershad as-
sumed power (1982) and continued to use religion for political legitimacy. He
declared Islam the state religion20 through the 8th Amendment (1988). The
newly added article 2A, the state religion clause, stated that ‘the state religion
of the Republic is Islam, but other religions may be practised in peace and
harmony in the Republic.’
Though constitutional changes were intended to gain populist support,
there was a solid objection to the state religion Bill. Some parliament mem-
bers walked out in protest.21 There were violent countrywide protests, general
strikes, and mass meetings opposing state religion. Three writ petitions were
filed challenging the constitutionality of article 2A.22 Nonetheless, simultane-
ous measures continued to translate the Islamisation of the Constitution to a
broader social context.23
In the 1990s, Ershad was ousted from power through a mass anti-autocratic
movement, ultimately leading to the democratic multi-party election in 1991.
As its election publicity, AL promised to reinstate secularism once voted to
power. The AL lost the election to the Bangladesh Nationalist Party (BNP),
who continued the Islamisation project.24 The typical picture of post-90s poli-
tics was that BNP and AL formed alliances with the Islamist political par-
ties to consolidate vote banks.25 The AL’s 1996 government did not restore
19 Jasmin Lorch, ‘Islamization by Secular Ruling Parties: The Case of Bangladesh’ (2019) 12
Politics and Religion 257.
20 Ershad justified the state religion clause as: “Our people . . . are religious-minded and want to
see Islam’s ideology and ideal reflected in society. That is why we made it the state Religion.”
See Anwar H Choudhury, ‘Religious Politics and Communal Harmony in Bangladesh: A
Recent Impasse’ (2017) 17(3) Global J. of Human Soc. Sc. 8, 23.
21 Rokeya Chowdhury, From ‘Secular’ to ‘Islamo-Secular’ Bangladesh (PhD Thesis, McGill Uni-
versity 2022) 44.
22 Three writ petitions were separately filed by NariPokkho (W.P. No 1330 of 1988), Citizens’
Committee for Resisting Communalism and Autocracy, and Mr Shakti Das Goswami (W.P.
No. 1177 of 1988). See Shah Alam, ‘The State-Religion Amendment to the Constitution of
Bangladesh: A Critique’ (1991) 24 Verfassung in Recht und Übersee 209, 211.
23 For example, changing weekend from Sunday to Friday, exhibiting Qur’anic quotations in
public ofces, broadcasting Azan on the national networks, establishing Bangladesh Madrasah
Education Board, imposing Islamic practices in observing Language Martyr Day. Mubashar
Hasan, ‘Democracy and Political Islam in Bangladesh’ (2011) 31 South Asia Research 97, 102;
Bhuiyan (n 6) 428.
24 Smruti S Pattanaik, ‘Majoritarian State and the Marginalised Minorities: The Hindus in Bang-
ladesh’ (2013) 37 Strategic Analysis 411, 417.
25 Ali Riaz, God Willing: The Politics of Islamism in Bangladesh (Rowman & Littlefield 2004).
secularism. Things started to change when AL dis-aligned itself with Jamaat-

e-Islami and promised to reinstate secularism in its 2008 election campaign.
Eventually, the Supreme Court, in the 5th Amendment case,26 declared the 5th
constitutional amendment unconstitutional. Following this decision, in 2011,
the parliament adopted the 15th Amendment27 and reinstated secularism and
other 1972 fundamental principles (nationalism, socialism, democracy). How-
ever, major religious elements such as the state religion (Islam) and the cita-
tion of ‘Bismillah’ at the beginning of the preamble were untouched.28 This
began the controversial coexistence of secularism and the state religion.
Debates over the meaning of secularism

Secularism is a contested concept, ‘the proper use of which inevitably involves
endless disputes about their proper uses on the part of their users’.29 Bangla-
desh adopted a genre of political secularism, which involves diferent norma-
tive positions: separation between state and religion, religious neutrality, the
equidistance between religion and state, equal respect for all religions, and
anti-religion attitude of the state. However, the meaning/normative position
of Bangladeshi (political) secularism was contested due to its undefined na-
ture.30 Article 12 does not define secularism; rather prescribes only some nega-
tive obligations to eliminate elements that block the realisation of secularism.
Bangabandhu addressed the definitional vacuum during the CA debates
and later political speeches. To quote one of his CA speeches:
Secularism does not mean the absence of religion [or irreligiosity]. The
Hindus, the Christians, the Buddhists, [will] all freely perform their re-
ligious rites. There shall be no use of religion for political purposes.31
It can be contended that Bangabandhu did not take secularism as the sepa-
ration between religion and state. This perception is also called the modus
26 Khondker Delwar Hossain v Bangladesh Italian Marble Works Ltd. (2010) 62 DLR (AD) 298.
The matter was first heard in the HCD in the Bangladesh Italian Marble Works Limited v
Government of Bangladesh (2006) 14 BLT (Special) (HCD) 1.
27 15th Amendment (n 1).
28 The amended article 2A is as follows: ‘The state religion of the Republic is Islam, but the State
shall ensure equal status and equal right in the practice of the Hindu, Buddhist, Christian
and other religions.’ The following (in italic) was added to the Bangla/English translation of
Bismillah: ‘In the name of Allah, the Beneficent, the Merciful)/In the name of the Creator, the
Merciful.
29 WB Gallie, ‘Essentially Contested Concepts’ (1956) 56 Proceedings of the Aristotelian Society
167, 169.
30 Joseph T O’Connell, ‘Dilemmas of Secularism in Bangladesh’ (1976) 11(1–2) J Asian &
African Studies 47.
31 Author’s translation from M Abdul Halim (ed), Gono Parishad Bitorko (CCB Foundation
2015) 70.
vivendi secularism, which ensures that a state is neither beholden to reli-

gion nor obstructing the free exercise of religion. In such cases, secularism
guards against politicising religion, instigating communalism, or promoting
bigotry. However, except for banning religious parties, whether any other
act, decision, or legislation is perceived as communal, fanatical, or favour-
ing religion was an open question that produced conflicting ideas about
secularism.
The CA debates indicate that some members had diferent ideas about sec-
ularism. For example, Sarder Amzad Hossain identified ‘disenchantment’ as an
aspect of secularism.32 Khandaker Mustaque Ahmad defined secularism as the
prohibition of the state’s entanglement of religion with governance.33 Kamal
Hossain, the chair of the Constitution Drafting Committee who presented the
Constitution Bill, supported Bangabandhu’s view but later construed secular-
ism as separation of the state from religion.34
Later, when the constitutional amendments, among others, related to
secularism and article 2A were subjected to writ petitions, even the Supreme
Court (SC) could not provide any consolidated definition. In the 5th Amend-
ment decision’s obiter, the Court explained secularism. However, it was con-
ceptually limited – (i) it indicated multiple normative positions for secularism
(e.g., tolerance, equal treatment to all religions, state’s strict neutrality, and
non-favouritism to religion) (ii) it did not unpack the core tenets of secular-
ism such as tolerance, equal respect for religions, non-favouritism, and state
neutrality.35
In the Goswami case,36 where the constitutionality article 2A (under the
15th Amendment) was challenged, the Supreme Court ofered the following
insights into Bangladeshi secularism: (i) secularism does not have an agreed
definition, (ii) Bangladeshi secularism is diferent from Western secularism,
and (iii) the equality of all religions is the normative basis of secularism (im-
plied observation).37 This decision, thus, again failed to clarify what secularism
meant.
Like the Supreme Court, contemporary political leaders also interpret secular-
ism diferently. The current prime minister, Sheikh Hasina, associated secularism
with Islamic tolerance.38
32 ‘We need to understand this clearly that secularism does not mean irreligiosity. Today we kept
secularism in the Constitution to protect religion, for salvation from religious persecution, to
ensure freedom oppression and for disenchantment,’ ibid, 139 [author’s translation].
33 Ahmad states that ‘we don’t want religion to don the cloak of the state to be dragged into the
state governance.’ ibid 149 [author’s translation].
34 Kamal Hossain, Bangladesh: Quest for Freedom and Justice (University Press Limited 2016)
142–143.
35 Khondker (n 26).
36 Samarendra Nath Goswami v Government of Bangladesh and Ors (2017) 27 BLT 1 (HCD).
37 ibid.
38 Farah Chowdhury, Islam and Women’s Income: Dowry and Law in Bangladesh (Routledge
2016) cited in Bhuiyan (n 6) 430.
Furthermore, there are considerable disagreements within the academic

discourse about the meaning of secularism: that secularism in Bangladesh is
not separation of religion and state;39 but some argue that secularism is the
separation or the state’s indiference/neutrality towards all religions;40 that
Bangladeshi secularism is somewhat akin to Indian secularism – sarba dharma
sama bhaba;41 that ‘the government established a “multi-theocracy”’42 or poly-
religious secularism.43 Some contend secularism is non-communalism,44 while
some think secularism (not irreligious) ‘still is the idea that negates the Islamic
morality, hence can also be interpreted as a rejection of religion.’45 Some his-
torians identified secularism as religious tolerance.46
The previous discussions show no settled definitional position of Bangladesh
secularism. The following section shows that one core justification for the coex-
istence between secularism and the ofcial religion is precisely this lack of clarity.
Justifications for the coexistence of state religion and secularism

and their critiques
This section thematically unfolds the critical political, theoretical, and praxi-
ological justifications in favour of the coexistence of secularism and Islam as
the state religion and presents their critiques.
Inclusive, non-separatist secularism
Taylor, Bhargava, and Laborde47 have criticised the traditional liberal assump-
tion of separation between religion/church and state as a constitutive element
of the modern liberal state and secularism. It can, thus, be argued that Bangla-
deshi secularism difers from Euro-American separatist secularism.
39 Werner Menski, ‘Bangladesh in 2015: Challenges of the Iccher Ghuri for Learning to Live
Together’ (2015) 1(1) University of Asia Pacific J of Law & Policy 9, 23; Smith (n 3).
40 Anisuzzaman (n 10); Mahfuza Khanam and Topon Kumar Dey (eds), Dharmanirapekhyta:
Samprodayik Sampritir Mail-Bandan (Merit Fair Prokashan 2015).
41 Tazeen M Murshid, ‘State, Nation, Identity: The Quest for Legitimacy in Bangladesh’ (1997)
20 J South Asian Studies 1.
42 Hakim (n 17).
43 Habibul H Khondker, ‘The Curious Case of Secularism in Bangladesh: What Is the Relevance
for the Muslim Majority Democracies?’ (2010) 11 Totalitarian Movements and Political Reli-
gions 185.
44 MJH Bhuiyan, ‘Secularism in the Constitution of Bangladesh’ (2017) 49 The J of Legal Plu-
ralism and Unofcial Law 204.
45 Hussin Mutalib and Taj ul-Islam Hashmi (eds), Islam, Muslims and the Modern State (Pal-
grave Macmillan 1994).
46 Muntasir Mamoon, Bangladesh: Bengali Psyche State Formation and Modernity (International
Center for Bengal Studies 2009) 55.
47 See Charles Taylor, ‘Can Secularism Travel?’, in Akeel Bilgrami (ed), Beyond the Secular West
(Columbia University Press 2016); Rajeev Bhargava, ‘An Ancient Indian Secular Age?’ in
Bilgrami ibid; and Cécile Laborde, Liberalism’s Religion (Harvard University Press 2017).
Both Menski and Billah see Bangladeshi secularism as a non-separatist one,

drawing on the contextually diferentiated role of religion in Bangladesh and
the West.48 Billah argues that religion is ingrained in the sociocultural ethos
of Bangladeshi society.49 Bangladeshi secularism is constructed with a more
inclusive language to capture the religion’s sociopolitical and legal relevancy
in society.50 Goswami case’s obiter resonates with this position. The Supreme
Court observed that secularism was never practised in the country ‘in the
sense that all religious practices are to be completely separated from the activi-
ties of the State.’51 This inclusive, non-separatist character of secularism sees no
conflict when it coexists with an ofcially recognised state religion.
In contrast, Anisuzzaman saw Bangladeshi secularism as a tool to detach
religious afairs from state initiatives. He argued that the religion is a matter
of citizens’ private beliefs and conduct, and while the state must guarantee the
freedom of religion, it shall have no relation to religions.52 Islam views secular-
ism as a lack of religiosity in the state and the state’s indiference towards re-
ligion.53 Also, Anisuzzaman showed that from Bangabandhu’s time, the term
secularism was understood as ‘not absence of religion,’ and secularism was
broadly construed as ‘religious neutrality among religions or equal treatment
of all religions and not separation between church and state.’54 This approach
eventually dominated the discourse. Therefore, the non-separationist dimen-
sion is arguably a politically constructed idea.
Secularism beholding social reality
This argument posits that declaring Islam the state religion responds to Bang-
ladesh’s changing social reality. It is based on a particular assumption about
social reality. As one reflected in PM Hasina’s statement – ‘Many things have
changed with time. We have to accept Islam as the state religion [as] [t]he peo-
ple of this country want Islam to be the state religion.’55 She further asserted
that ‘the majority’s sentiment will be respected and the government’s action
would not hurt their sentiment . . . , but Bangladesh will be a state based on
secularism.’56 A Pew survey provides an essence of the current popular senti-
48 SM Masum Billah, ‘Rethinking Secularism under Bangladesh Constitution’ (2014) 1(1) Jag-
annath University LJ 149; Menski (n 39) 31.
49 SM Masum Billah, ‘Can “Secularism” and “State Religion” Go Together?’ in Mizanur Rah-
man and M Rahmat Ullah (eds), Human Rights and Religion (ELCOP 2014).
50 SM Masum Billah, ‘Bangladesh: Public Law, Religious Freedom and Regulating Religious Sen-
timent’ in Li-ann Thio and Jaclyn L Neo (eds), Religious Ofences in Common Law Asia: Colo-
nial Legacies, Constitutional Rights and Contemporary Practice (Hart Publishing 2021) 217.
51 Goswami (n 36).
52 Khanam and Dey (n 40).
53 ibid.
54 Anisuzzaman (n 10) 39.
55 Chowdhury (n 21) 49.
56 Bhuiyan (n 44) 216.
ment. The survey shows 82% of Bangladeshi Muslims support having Islamic
law as ofcial law.57 This data reveal the changing social reality where the po-
liticisation of Islam is deeply entrenched and majoritarian hegemony has been
normalised, so declaring Islam as state religion was unavoidable.
Anisuzzaman questioned whether the Bangladeshi society had transformed
enough to have such coexistence. He acknowledged the growing relevance of
religion in society but claimed that it should not be construed as creating the
need for a state religion.58 There had been no public demand for state religion.
The military rulers made these changes for their own political purpose59 and
the people accepted them because they had no other choice.60 However, it is
also true that it was the people who overthrew Ershad, the military ruler to
first make Islam the state religion.61 This factor indicates that the state religion
does not take precedence over other political demands such as freedom of reli-
gion and democracy. The Supreme Court in Chadpuri62 raised the question of
whether the state needs religion because it ‘cannot perform religious duties.’63
Strategic political compromise
Coexistence is a strategic political move or compromise not meant as a perma-

nent strategy. This strategy gets some support from senior AL leader Abdur
Razzaq, who in 2016 said that ‘the State of Muslim-majority Bangladesh will
drop Islam as the country’s state religion when the time comes . . . Islam has
been kept as the state religion for strategic reasons.’64
The strategy is to preserve secularism while avoiding political backlash. For
example, in 2016, Hefazat-e-Islam,65 in response to a writ petition challeng-
ing the ofcial status of Islam, publicly threatened that removal of Islam as
the state religion would end in millions of people taking to the street and
social chaos.66 The coexistence of secularism arguably mitigates such violent
57 Mubashar Hasan, ‘Religious Freedom with an Islamic Twist: How the Medina Charter Is
Used to Frame Secularism in Bangladesh’ <https://tinyurl.com/ycku5w2n> accessed 18
April 2022.
58 Anisuzzaman (n 10) 42.
59 ibid 43.
60 ibid.
61 ibid 43. See also, Muhammad Rezaur Rahman, ‘The Compatibility of State Religion and
Constitutional Secularism Co-Existence: Bangladesh in Context’ (2020) 24(1) Indian J. of
Secularism 30, 39.
62 Maulana Syed Rezaul Haque Chadpuri v Bangladesh Jamaat-e-Islami (2014) 66 DLR
(HCD) 14.
64 ‘Bangladesh Will Drop Islam as State Religion When the Time Comes’ <https://
rb.gy/1melif > accessed 18 April 2022.
65 Julien Bouissou, ‘Bangladesh’s Radical Muslims Uniting Behind Hefazat-e-Islam’, The Guard-
ian (30 July 2013) <https://bit.ly/3mISSZL> accessed 29 May 2022.
66 ibid.
possibility. Thus, coexistence can be seen as ‘a compromise formula involving

religion and [a] secular ideal.’67
The coexistence is an astute move to placate both secularists and Islamists,
indicating that state religion is not a matter of need but rather a convenience
that has nothing to do with respecting religious pluralism or acknowledging
the positive role of religion in social life – something the government claims.
Prime Minister Hasina’s statement that ‘we have to accept Islam as the state
religion’ testifies to it. Moreover, during the Ershad regime, Hasina acknowl-
edged that due to the broader sentiment attached to Islam, the majority’s re-
ligion, the state religion could not now be removed from the Constitution. A
strategic response to or political compromise through coexistence might have
been a preemptive response to a possible backlash, which, however, does not
mitigate the conflict between secularism and the state religion.
Coexistence is the mode of living (modus vivendi)
Bhuiyan claimed that coexistence is a form of modus vivendi (MV).68 Modus

vivendi arrangement is an institutional strategy that allows conflicting groups
to live together peacefully, where peace should be construed as a stable ab-
sence of violence.69 In Bangladesh, if Muslims and religious minorities are
construed as conflicting groups, the coexistence strategy ofers peace without
compromising secularism with the state religion and vice-versa. However, the
theoretical requirements must be satisfied to construe coexistence as an MV.
When the MV is translated into the Bangladeshi context, there are some dif-
ferences. There are no conflicting groups. Instead, politically instigated and/or
radicalised majoritarian Muslims one-sidedly persecute the minorities. Thus,
theoretically, the premises for MV do not exist in Bangladesh.
Symbolic recognition to the majority religious community
Billah contended that the state religion should be considered a symbolic cer-
emonial recognition of a religious community that constitutes a majority of
the population.70 This proposition is based on the following: Islam as a state
religion is not a fundamental constitutional principle. It is mainly apolitical
recognition of Islam without any overarching impact on secularism. Also, the
substitution of ‘absolute trust on Almighty Allah’ with secularism, as a funda-
mental constitutional principle, confirms its constitutional priority. Secondly,
the state religion neither establishes a Sharia-based theocratic legal system
67 Harun-or-Rashid, ‘Desecularisation and Rise of Political Islam in Bangladesh’ (2012) 57 J of

Asiatic Society 29, 38.
68 Bhuiyan (n 6) 447.
69 Fabian Wendt, ‘The Moral Standing of Modus Vivendi Arrangements’ (2016) 30 Public Af-
fairs Quarterly 351, 351.
70 Billah (n 48).
nor mandates the establishment of Sharia courts71 to override the validity of

secular law. Besides personal religious laws, secular laws continue to be the
corpus juris of the Bangladeshi legal system. Thirdly, the provision of a state
religion does not prevent the state from enacting any secular law derogating
from Islamic principles.72 Fourthly, article 2A is diferent from other jurisdic-
tions where constitutional recognition of majority religion goes beyond sym-
bolism. For example, in Sri Lanka, the Constitution declares the primacy of
majority religion – Buddhism, which requires the state to protect and foster
Buddhism.73 Bangladesh’s Constitution does not require any such positive ob-
ligation. Thus, the state religion is mainly symbolic.
Bardon74 and Laborde75 propose certain conditions for permissible sym-
bolic establishment or recognition of any ofcial religion. The symbol must
be non-divisive, non-political, and justified to people. Based on this frame-
work, declaring any religion as the state religion as a symbolic recognition
becomes problematic because it is divisive (i.e., a marker of social vulner-
ability and domination)76 and political. Religious minority’s responses to
state religion signal the divisive political nature of the recognition. Reli-
gious minorities have always been cautious of a state religion.77 The Bangla-
desh Hindu Buddhist Christian Unity Council has posed state religion as a
seed of communal politics and minority persecution.78 Also, Hefazat-e-Islam’s
public warning to bring public havoc in response to writ against state reli-
gion entails the political importance of the state religion. Finally, the state
religion is not justified to the people because while it grants equal respect to
all other religions, it contradictorily sets Islam as the ‘standard’ of treatment
for other religions.
The equal respect argument
Laborde argues that recognising the majority religion may be justifiable ‘if
equality between believers of diferent religions is interpreted as mandating
71 MJH Bhuiyan, ‘Law and Religion in Bangladesh’ (2017) Brigham Young U L Rev 839, 857.
72 Rahman (n 61) 37.
73 Article 9 of the Constitution of Sri Lanka says: ‘The Republic of Sri Lanka shall give to Bud-
dhism the foremost place and accordingly it shall be the duty of the State to protect and foster
the Buddha Sasana, while assuring to all religions the rights granted by Articles 10 and 14(1)(e).’
74 Aurélia Bardon, ‘Christmas, Crescents, and Crosses: When Is Symbolic Religious Establish-
ment Permissible?’ (2022) 66 AJPS 255, 259–260.
75 Laborde (n 47).
76 ibid 137.
77 Heiner Bielefeldt, ‘Report of the Special Rapporteur on Freedom of Religion or Belief on His Mis-
sion to Bangladesh’ <https://digitallibrary.un.org/record/823720> accessed 31 March 2022.
78 Sumon Corraya, ‘Hindus, Buddhists and Christians Say No to Islam as State Religion’
<https://bit.ly/3xmuJNl> accessed 18 April 2022.
even-handed support of all by the state.’79 The SC in the Goswami case afrms
that equal respect part of article 2A mitigates any derogation from the ideal
of secularism and does not raise any question of discrimination,80 though the
Court did not clarify how the equal respect mitigates the conflict.81 Billah ex-
plains the significance of ‘equal respect’ by comparing the language of the old
article 2A with the present version. He argues that the old version stipulates
that Islam is the state religion but that other religions may be practised in
peace and harmony. In contrast, the present article 2A uses the expression of
equal status, and the idea of ‘equal respect’ puts a positive obligation on the
state to ensure equality among all religions.82
However, the fact remains that the state religion’s status has only been
granted to Islam. The escalation of communal violence, the government’s re-
luctance to regulate Hefazat, persecution of free thinkers,83 and PM Hasina’s
declaration of running the country based on the Medina Charter contradict
the idea of equal respect for all religions.84 Thus, without objective criteria,
mentioning equal respect for all religions under article 2A does not practically
mitigate the hierarchy between Islam and other religions.
Maintaining religious pluralism
Coexistence is often argued to be a means to deal with Bangladesh’s pluralist

religious dynamics. Hirschl’s constitutional theocracy theorises that in contrast
to the traditional assumption to see religious inclusion in the Constitution as
a bad omen, religion is sometimes strategically imported by secular elites as a
token to contain and spread religion.85 Constitutional courts under constitu-
tional theocracy can use constitutional means to ‘tame’ or ‘moderate’ religion
by interpreting it liberally.86 Likewise, Hoque considers coexistence an innova-
tive formula cognisant of religiously pluralist Bangladeshi society.87 It ‘seems
to ofer a uniquely skilled tool to navigate competing identity claims.’88 This
79 Cécile Laborde, ‘Political Liberalism and Religion: On Separation and Establishment: Political
Liberalism and Religion’ (2013) 21 J Poll Philosophy 67, 72.
80 Goswami (n 36).
81 Chowdhury (n 21).
82 Billah (n 48) 154.
83 Rahman (n 18).
84 ‘Country to Be Run as Per Madinah Charter: PM’ <https://tinyurl.com/yckzdtc8> accessed
13 June 2022.
85 Ran Hirschl, Constitutional Theocracy (Harvard University Press 2010).
86 ibid.
87 Ridwanul Hoque, ‘Eternal Provisions in the Constitution of Bangladesh: A Constitution
Once and for All?’ in Richard Albert and Bertil E Oder (eds), An Unamendable Constitution?
(Springer 2018) 207.
88 ibid 14.
argument reiterates Menski’s position that article 2A presents ‘the more pro-
ductive and realistic approach to address religious pluralism and connections
of religion with politics [and] society,’ bringing them to the table for debate
and management.89 All these arguments imply that article 2A is a tool to navi-
gate the competing claims of religions within reach of constitutional law, with-
out which there is a chance of full-blown religious penetration.
Shah outlined the adverse long-term efects of constitutionalising any par-
ticular religion. Without a strict rule of law, constitutionalised religion might
become malleable and bring unintended, perverse consequences.90 Schonthal
argued that ‘association of constitutional law with the reduction of conflicts
over religion belies the fact that constitutional practice often coincides with
the escalation of conflict,’91 which can ‘harden religious divisions, perpetu-
ate disputes and, in some cases, amplify the perceived religious dimensions of
social conflicts.’92 The harm is already visible. Bangladesh’s democratic crisis,
strong political presence of religion in the public sphere, the weak rule of
law, meagre protection for religious minorities, and unscrupulous history of
religion-based politics do not indicate an ideal political platform for constitu-
tionalising religion.
Anti-coexistence justifications and their critiques
Historical justification
Subcontinental history shows the negative outcome of religion-based politics.

For instance, Hinduism during the Swadeshi movement against the British
Raj, the Muslim preference for the Bengal partition, the two nations theory,
or Islamisation of the Pakistani Constitution’s religiously driven political or
legal interventions, none of these religiously driven political moves played in
the interest of the mass.93 Religion-based politics gradually dismantled toler-
ance, forged division, cost lives in communal violence, and fragmented a united
geographical entity in 1947. These historical contexts motivated Bangladesh’s
liberation struggle on secular grounds. Also, the 1971 genocide of Bangalees
and the persecution of Hindus were strong factors in the 1972 Constitution’s
design. Secularism intended to prevent repeating the mistakes Pakistan made
by creating political hegemony.
That said, politico-legal reformers need to acknowledge the present reality.
After the 15th Amendment, it is imperative to interpret the coexistence as a
89 Menski (n 39) 31.

90 Dian AH Shah, Constitutions, Religion and Politics in Asia: Indonesia, Malaysia and Sri Lanka
(Cambridge University Press 2017) 4.
91 Benjamin Schonthal, Buddhism, Politics and the Limits of Law: The Pyrrhic Constitutionalism
of Sri Lanka (Cambridge University Press 2016).
92 ibid.
93 Rahman (n 2).
crafty balance between the past and the present, whether or not the present
government practises its claim of giving precedence to secularism over Islam.
State religion is inconsistent with Bangalee nationalism
Using his ‘kite theory of law’,94 Menski argues that secularism, socialism, de-
mocracy, and nationalism are the four corners of a kite that represents the key
elements of Bangladesh’s national vision.95 These four corners must work in
consonance and, thus, test the coexistence’s compatibility. For Menski, na-
tionalism is directly connected to secularism.96 The language and spirit of the
liberation war, the two constitutive elements of Bangalee nationalism, reflect
the denial of religious hegemony and the formation of a new nation based on
language and culture, not religious normativity. The SC’s obiter in the 16th
Amendment Case is also relevant, where it remarked that the 15th Amend-
ment retained the provision of state religion ‘to cope with the religious sen-
timent’ that ‘directly goes against the spirit and aspiration of our liberation
war.’97 In the Court’s view, ‘the principle of secularism was compromised’ by
the legislature and that constitutional change keeping Islam as the state reli-
gion under the 15th Amendment ‘buried the spirit of original constitution
and liberation war.’98
This position has been criticised too. Firstly, whether nationalism is the
correct principle to contend with the issue of the state religion. The national-
ism principle is argued to be an imposition by political elites and intelligentsia
against Bangladeshi people’s religious identity. Bangalee nationalism is alleg-
edly partisan and exclusionary as it afrms only the dominant Bangalee ethnic-
ity, excluding almost fifty-four diferent non-Bangalee indigenous groups.99
Secondly, while language- and culture-based nationalism was historically a
response to religious hegemony, it does not indicate indiference to religious
culture forming an integral part of Bangalee’s life.100
De-secularisation argument
This position argues that the state religion has escalated the reactionary pres-
ence of Islam and marginalised secularism. The ultra-rightist Islamic groups
94 Werner Menski, ‘Remembering and Applying Legal Pluralism: Law as Kite Flying’ in Lukas
H Urscheler and Seán P Donlan (eds), Concepts of Law: Comparative, Jurisprudential, and
Social Science Perspectives (Routledge 2016).
95 Menski (n 39).
96 ibid.
97 Bangladesh v Advocate Asaduzzaman Siddiqui (2017) 25 BLT (Special Issue) (AD) 1.
98 ibid.
99 See generally, Ridwanul Hoque, ‘Inclusive Constitutionalism and the Indigenous People of
the Chittagong Hill Tracts in Bangladesh’ in MP Singh (ed), The Indian Yearbook of Com-
parative Law 2016 (Oxford University Press 2017).
100 Rahman (n 61) 49.
have recently escalated demands for Sharia-based governance. Increased reli-

gious sensibilities in political discourse indicate strain on secularism and state
capitulation towards religiosity. Public warnings by PM Hasina to the bloggers
for criticising Islamic sentiments101 and the government’s recent attachment
with Hefazat are examples that signal the gradual decline of secularism and
religious revivalism. It may be argued that de-secularisation got momentum
after the 2011 constitutional amendment.
While there is a stream of increased religious sensibilities or intolerance,
there is no revolutionary movement against secularism or for the establishment
of a theocratic/Islamic state. De-secularisation and its apparent connection
with the state religion can be questioned. By contrast, it may be questioned if
there was ever any formal secularisation in Bangladesh.
Towards a new discourse of secularism and state religion debate

The previous discussion shows that every justification in favour or against co-
existence can be questioned by historical-social facts, political discourse, and
jurisprudence. This is partly because of the disagreement on religion’s role in
society and politics – religious versus secular identity conflict; functionality of
secularism in a Muslim country; concrete meaning of secularism; the role of
religion in public life; rationale for having a state religion; and the efectiveness
of present secularism. Without resolving these issues, focusing on the coexist-
ence debate may distract attention from the possible way out. The need for an
alternative discourse is, therefore, apparent.
As such, the current crisis may not be resolved just by removing the state
religion clause in the Constitution, but it could be the first step. Therefore, it
is essential to start a new discourse to address national identities, religion, and
governance issues. Consequently, Bangladesh may explore the possibility of
adopting formal secular policy through micro- and macro-level deliberations
with people from diferent religions and non-religious communities.
Legal and administrative policies related to the governance of religion must
be based on the reasonable consensus of the communities. This is a difcult
balance to strike in Bangladesh. Nevertheless, such difculties should not be
an excuse for leaning towards the specific policy of having Islam as the state
religion, which may alienate part of the population from being equal citizens
of the republic.
Conclusion
The inclusion of secularism in the constitutional framework was not a smooth
process. The earliest attempts to defuse the secular and religious tension in-
tended to provide a religiously conducive meaning to secularism but did not
101 ‘Bangladesh Bloggers Fear Threat from State’ <https://rb.gy/kqisdy> accessed 18 April 2022.
ease the tension. The ambiguities of the meaning of Bangladeshi secularism

escalated the tension and led to the removal of secularism and the inclusion of
Islam as the state religion. The 15th Amendment, nevertheless, brought back
secularism while not removing the state religion, creating the constitutional
paradox of coexistence. While pro- and anti-coexistence factions have cogent
arguments to support their position, they are not decisive. Although the result
of coexistence is supported by the ruling government and is not seriously
questioned by the Court, the constitutional innovation under the 15th
Amendment fails to strike a balance between the state religion and the freedom
of religion of the believers in other religions as well as non-believers. The chapter
has traced all these debates, identified the discrepancies of each argument, and
finally showed that the present challenges relating to governance of religions
is not amenable to the simple removal of Islam from the ofcial position. The
solution requires an alternative discourse in finding a stable mechanism for
governance of religion.
Part II
Constitutionalism, rule of
law, and judicial review
5 Rule of law within the
constitutional scheme
A judicial perspective
Syed Refaat Ahmed
Introduction
This chapter proceeds on the premise that, firstly, justice is based on the un-
derstanding that law and morality are intertwined concepts, in turn determin-
ing how justice is delivered, and, secondly, law as a department of morality is
defined by its distinct substance distinguishable and refined by institutional
structures and constitutional schemes. I am indebted to Ronald Dworkin’s es-
pousal of these ideas in his Justice in Robes1 while critiquing and largely reject-
ing the doctrinal positivism of HLA Hart. Hart views the “existence and the
content of the law” to be “identified by reference to the social sources of the
law (e.g., legislation, judicial decisions, social customs) without reference to
morality except where the law thus identified has itself incorporated moral cri-
teria for the identification of the law”.2 Dworkin explains that legal positivists
have subscribed to this view to insist that judges should strictly obey legislative
commands and not arrogate to themselves the authority to either criticise the
law or substitute legislative commands with their own. Note, therefore, Jeremy
Bentham’s assignment to the sovereign ruler and a popular legislature sole
authority to declare and decree upon the content of the law. Hence, the posi-
tivist truism Law Stops Where Decree Ends.3
In contradistinction to the positivist view, I submit that efcient and efec-
tive delivery of justice must involve a determination of the substance of law,
and the role assumed by judges in this regard is a real one. Judicial review of
administrative decisions/orders as sanctioned under article 102 of the Con-
stitution of the People’s Republic of Bangladesh (hereafter ‘the Constitution’)
and the recognition of judicial authority to enforce fundamental rights under
article 102(1), read with article 44(1), are two significant aspects of such a
role. Detractors of such a judicial role see it to be discordant with the majori-
tarian democratic ideal of only a popularly elected legislature being authorised
1 Ronald Dworkin, Justice in Robes (The Belknap Press of Harvard 2006).

2 HLA Hart, The Concept of Law (Oxford University Press 1994), 269. See also Dworkin, ibid
144.
3 Dworkin (n 1) 174.
DOI: 10.4324/9781003276814-7
78 Syed Refaat Ahmed
to define the substance of the law. In other words, they would view the judicial
review process to be undemocratic. If, however, to the contrary, one adheres
to the notion of fairness being indispensably linked to a functional democracy,
the judiciary’s role in ensuring such fairness remains pivotal. In this sense,
“judicial review is not inconsistent with democracy because democracy does
not mean just majority rule, but majority rule subject to those conditions
that make majority rule fair”.4 Many who oppose this concept of democracy
and also the necessity of judicial review, nevertheless, concede in a limited
sense and confined within a restricted scale the existence of constitutionally
guaranteed freedoms or fundamental rights.5 Judicial review, therefore, marks
a shift away from majoritarian righteousness (and the strict positivist view)
towards ensuring fair play in a democratic constitutional order. Such a shift is
not merely tactical but unavoidable.
Judicial role in discovering the true proposition of law as a

manifestation of the rule of law
Based on the previous section, I posit that it falls on judges today operating
within a modern-day constitutional dispensation to decide on the true propo-
sition of law. That indeed has been the preoccupation and thrust of common
law principles that have evolved over the centuries in the field of judicial review
of the legality of administrative or executive decisions.
The content of these principles derives from the concepts of political and
personal morality like justice, liberty, equality, and right and wrong. It becomes
imperative, therefore, for the judiciary in the discharge of its constitutional
mandate to rely on these interpretative concepts in finding and identifying
the true proposition of law. Furthermore, the sum total of these concepts is
reflected in our image of legality and the rule of law6 constituting the funda-
mental basis of the Bangladeshi or any democratic order. Indeed, that is the
ideal that any proposition of valid law must aim at. It is that ideal that, in turn,
reflects the aspirational value of the law.
There are certain pathways through which the aspirational value may be
determined. Judicial independence marked by integrity, morality, and prag-
matism is but one of the indicators that judges must conform to in arriving at
coherent, intelligible, and reasoned conclusions as to the scope and nature of
the law. It is at this juncture that a theoretical or jurisprudential ascent takes
4 ibid. See also R Dworkin, Freedom’s Law: The Moral Reading of the American Constitution
(Harvard University Press 1996).
5 Dworkin (n 1) 147–148.
6 The principle of legality, which can be equated with the rule of law, is especially enshrined in
article 102(2) of the Constitution, which allows the Court to enforce the principle in a judicial
review proceeding. The concept of the rule of law, on the other hand, is a core principle of the
Constitution (see the preamble).
Rule of law within the constitutional scheme 79
place in discarding traditional, and strictly positivist, modes of defining and

applying the law.
The philosophical underpinnings of the rule of law in a democracy con-
verge in the following order of the High Court Division of the Supreme Court
made in an election dispute. That order is notable in that it encapsulates, in
a nutshell, the content and true essence of the rule of law and the process by
which it is safeguarded.
In an election dispute involving the interpretation of article 66(2)(d) of the
Constitution, brought to the Court in a constitutional judicial review,7 the
petitioner challenged the cancellation of her candidacy in the parliamentary
election on the ground that, pending appeal, her conviction was determinative
to disqualify her. The key part of the Court’s order in Begum Khaleda Zia v
Bangladesh Election Commission8 reads thus:
The mainstay of the prayer for a Rule Nisi has been the ratio decidendi of
the Appellate Division Judgment in Khaledur Reza Chowdhury vs. Saleha
Begum reported in 48 DLR (AD) (1996) 268, . . . The moot issue aris-
ing in this case, therefore, is . . . the substantive status and efect of an
order of conviction and sentence during the pendency of an appeal. The
Petitioner’s learned Advocate, Mr A.J. Mohammad Ali has argued on
the 48 DLR Case as authority for the view that an electoral disqualifica-
tion stemming from a conviction and sentence would only mature and
become final either on a final disposal of an appeal or an expiration of the
limitation period of filing of [the] appeal. Mr Mahbubey Alam, appearing
for the Election Commission, has gone on to contradict that position. Mr
Alam’s assertion on the contrary has been that the 48 DLR Case remains
authority instead for a limited exercise of authority in judicial review by
a constitutional court in matters of election disputes. He has also cited
the judgment in Zahedul Islam Khan vs. HM Ershad reported in 6 BLC
2001, 3019 . . . as indicative of a disqualification attaching immediately
upon conviction in the context of article 66(2)(d) of the Constitution.
The debate above demonstrates to this Court, and in [this judge’s]10
considered opinion, a lack or absence of a definitive and entrenched
judicial view, expressed in particular by the Appellate Division, on the
nature of disqualification attaching upon a conviction in the context of
article 66(2)(d) of the Constitution and the substantive efects flowing
therefrom. That in itself, in the undersigned’s view, merits a Rule Nisi to
7 Writ Petition No. 15740 of 2018, High Court Division (order of 11 December 2018), result-
ing in the reported case of Begum Khaleda Zia v Bangladesh Election Commission (2019) 7
CLR (HCD) 8.
8 (2019) 7 CLR (HCD) 8, 10–11.
9 Upheld in Hussain Mohammad Ershad v Zahidul Islam Khan (2001) 21 BLD (AD) 142.
10 The author of this chapter was the judge writing the order.
be issued [by this Court]. Furthermore, it has not escaped this judge’s
attention that the impugned order of rejection [of the Petitioner’s can-
didacy] by the [Returning Ofcer, Bogura] is substantively flawed in its
citation of a disqualifying provision of the RPO11 evidently inapplicable in
the facts and that the other impugned order . . . issued by the . . . Election
Commission [of] Bangladesh, afrming such rejection and cancellation
order of [the Returning Ofcer], is not a unanimous one. Indeed[,] a dis-
senting order of one Election Commissioner is on record questioning the
sufciency of the rejection order of 2.12.2018 passed by the [Returning
Ofcer]. These facts also further attest to the need for further review of
all relevant issues by this Court.
There is additionally, an element of the Petitioner potentially being
treated in a manner that is in contravention of fundamental guarantees
under article 27, in particular, of the Constitution given her contention
that certain individuals otherwise similarly placed as her have been al-
lowed to contest the forthcoming election.
Predicated on the above, an entire gamut of issues convinces the un-
dersigned that the issue of disqualification that is focal to this case arising
from a conviction and sentence is far from being a settled matter authori-
tatively and definitively decided upon by the superior court at any level.
With jurisprudence so unevolved . . . concerning the issue of disquali-
fication as arises here, the merit in this Application . . . lies . . . in ofer-
ing an opportunity to establish a definitive judicial stance on such issue.
Until then, the undersigned sees no ground that can reasonably be taken
to satisfactorily apply any ostensible objective standard with any level of
certainty in the facts and circumstances. To argue and insist otherwise
would be to take an overly formalistic view of the application of the rel-
evant law and constitutional provision.
The senior judge of the Bench thought that “a final and authoritative ruling”
on the interpretation of the application of article 66(2)(d) of the Constitution
warranted “a full-scale hearing of the matter”.12 He also thought that:
to summarily reject [the petition] in the absence of any definitive judicial

endorsement of a standard test . . . would result in ofending the en-
trenched constitutional equality and anti-discrimination standards pre-
venting jurisprudential development and authoritative interpretation of
article 66(2)(d) and stunting, resultantly, the growth of a substantive
democratic order beyond a mere formal one.13
11 The Representation of the People Order 1972 (President’s Order No. 155 of 1972).
12 Begum Khaleda Zia v Bangladesh Election Commission (2019) 7 CLR (HCD) 8, 11 (emphasis
added). The author of this chapter was the senior judge of the Bench.
13 ibid 11.
In view of this reasoning, and “upon prima facie satisfaction of the merit
of [the] Application”, the senior judge issued a rule nisi calling upon the Re-
spondents to show cause as to why their orders/decision “should not be de-
clared to have been passed illegally” and why “the Petitioner should not be
allowed to participate in the ensuing national parliamentary elections on 30
December 2018” pursuant to a decision of the Appellate Division of the Su-
preme Court reported in 48 DLR (AD) 208.14 The Court ordered a stay
of the operation for three months of the impugned decisions passed by the
returning ofcer cancelling the nomination paper of the petitioner and af-
firmed by the Election Commission as the appellate body. Furthermore, “the
Respondents [were] directed to allow the Petitioner to complete all necessary
formalities to contest in [then ensuing] 11th parliamentary elections . . . be-
yond the timeline otherwise fixed by the Respondents”.15
The theoretical ascent we speak of has a core moral element to it, and that
element, in turn, is essentially constitutional. Bangladesh’s Constitution, like
others, places constraints on legislative and executive power in terms construed
to be moral. Constitutionally guaranteed freedoms and rights, in themselves,
read as limits on ofcial power to arbitrarily derogate from or deny the same.
Increasingly, the fundamental principles of state policy16 are being invoked by
the Constitutional Court not merely for the interpretation of the law but also
for the progressive development of the law. Article 102 of the Constitution, in
authorising the judiciary to examine violation of fundamental rights or to is-
sue writs of certiorari, prohibition, mandamus, habeas corpus, or quo warranto,
sanctions the various pathways through which judges can make moral judg-
ments on moral-legal issues for the attainment of that ultimate aspirational
value of both legality and the rule of law. The following section analyses this
aspect of the rule of law.
Morality as an aspirational value of the rule of law

One such judicial exercise at determining the substance or the true proposi-
tion of law involved two cases, Md. Mehdi Hassan v Bangladesh with Venita
Salgado v Bangladesh,17 disposed of analogously by a common judgment of
the High Court Division.18 That judgment probed into the inadequacies of a
legal provision, the inequities that result from it, and the responsibility thrust
upon the Court to identify and clarify the true content and proposition of the
law. The presumption is that of a moral test applied by the Court in asking it-
self what ought the law fairly and reasonably achieve? In other words, what does
14 ibid. However, the other judge of the Bench, Kabir J, dismissed the petition summarily.
15 ibid 12.
16 These directive policies are enshrined in Part II of the Constitution (arts. 8–25).
17 (2012) 1 LCLR (HCD) 380 (also reported in (2014) 19 BLC (HCD) 472).
18 The author of this chapter was the author judge, writing the opinion of the Court.
the law aspire to achieve? The validity of that exercise is further amply attested
to by legislative changes brought into the law at the heels of the judgment
analysed next. That consequential amendment removes all scope for arbitrary
interpretation and application of the law as addressed in the judgment itself.
What emerges, therefore, is a complementary functioning of two organs of the
state – the judiciary and the legislature – mutually reinforcing the common
quest for establishing the rule of law without straying beyond their constitu-
tional boundaries.
The judgment in Md. Mehdi Hassan Case has emerged as a landmark rul-
ing both with regard to issues of maintainability/reviewability and enunciation
of the definition of worker under the Bangladesh Labour Act 2006 (hereafter
“BLA”). It was argued that the actions of a company’s Board of Trustees (BOT)
are not subject to judicial review as the BOT is not a statutory public authority
performing functions in connection with the afairs of the republic or of a local
authority and that the employees with a supervisory/managerial role are not
workers under the BLA. The Court found that the BOT of Unilever’s Workers
Participation and Welfare Fund (“the Fund”) exercises powers under the BLA
for and on behalf of the government and under its express and continuous su-
pervision. It is the fundamental responsibility of the state, as enshrined in the
preamble, article 10, and article 14 of the Constitution,19 to emancipate workers
from all forms of exploitation. Accordingly, the Court found that the BOT, in
implementing the provisions of the BLA, which was enacted to protect workers
from exploitation, performs public functions closely related to those required to
be performed by the state in its sovereign capacity. As such, the illegalities com-
mitted by the BOT are amenable to the writ jurisdiction of the Court. Further-
more, the Court held that the judicially sanctioned standards for determining
whether an employee is a worker or not include such matters as the power of
the employer to hire or fire, the authority to appoint employees, and/or to take
any disciplinary actions against them, the power to discharge any policy-making
responsibility and the ability to exercise any discernible degree of discretionary
power in the discharge of one’s duties. The judgment remains the authoritative
exposition and interpretation of the law on accessibility to the workers’ Fund.20
Following the judgment, the legislature, in untying the Gordian knot,
brought changes by an amendment21 to section 233 of the BLA inter alia
providing an expansive definition of “beneficiaries” of the Fund. The amended
definition, freed from interpretational trappings, emphasises the notion of ac-
cessibility to the Fund as was indeed the focal point of consideration in the
judgment. Significantly further, there is a notable shift in the prime determi-
nants of such accessibility. The performance of administrative, managerial, and
19 These provisions are further detailed in another section.

20 Although an appeal against the judgment was lodged, that process was abandoned when Uni-
lever filed an application for withdrawal from the appeal process.
21 Via the Bangladesh Labour (Amendment) Act 2013 (Act No. 30 of 2013).
supervisory roles is no longer a bar for someone to be recognised as a worker.

Indeed, a broader concept of beneficial interest in the Fund is adopted regard-
less of one’s ofcial status or designation subject to the easily calculable prereq-
uisite of a nine-month minimum service period. The legislature appears to have
taken note of the judgment’s elaboration of the pitfalls of, and arbitrariness
inherent in, the process of segregating workers according to their responsibili-
ties discharged and has been guided by a more benevolent notion of equity and
fair play by opening up accessibility to the Fund to all workers.
Indeed, the legislature has gone a step further than the Court in the proper
administration of the Fund. While the Court sought the best feasible imple-
mentation of a difcult piece of legislation by resorting to tests of fair play
and good reason and confined itself to the given legislative perimeter, that
jurisprudential ascent provided the legislature with an indication of the way
forward. The legislature with its entrenched democratic authorisation, there-
fore, completely overhauled the access mechanism to deter any possibility of
exploitative machinations and devices hatched.
That theoretical ascent, made by the Court, was but a moral value attached
to a fundamental constitutional tenet against the exploitation of workers.
Dwelling on the “public nature” of the functions of a private entity as the Uni-
lever BOT, the Court ofered the following exposition of the constitutional
scheme within which such functions have to be discharged:
The public nature of the functions of the BOT is found further to be

predicated on the very scheme of the [Act of 2006]. The purpose of
both the Acts is to protect the rights of the workers i.e., to ensure in the
present instance that they get a fair share of the Company’s profits and
to prevent exploitation of the workers by their employers. The BOT by
administering the Welfare and Participation Funds in accordance with
the directions of the Government is ensuring that workers are protected
from exploitation by their employers. To that extent, the BOT by imple-
menting the provisions . . . of the Act of 2006, is intended to facilitate
fulfillment of the fundamental responsibility of the State to emancipate
workers from all forms of exploitation. In that regard, this Court takes
due note of the Preamble of the Constitution which states that it shall
be the fundamental aim of the State to realize through the democratic
process a socialist state free from exploitation i.e., 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. Indeed, in
keeping with the demands of a socialist state, the framers of the Constitu-
tion enacted articles 10 and 14 of the Constitution. Article 10 provides
that a socialist economic system shall be established with a view to ensur-
ing the attainment of a just and egalitarian society, free from exploita-
tion of man by man (e.g., of workers by employers). Article 14 of the
Constitution makes it a fundamental responsibility of the State to protect
peasants and workers from all forms of exploitation. Given further that
Articles 10 and 14 are fundamental principles of State policy, according

to article 8(2) [these] principles . . . are fundamental to the governance of
Bangladesh and shall be applied by the State in the making of laws . . . and
shall form the basis of the work of the State i.e., the duties and responsi-
bilities vested by statute in the BOT . . . to implement the provisions . . .
of the Act of 2006. This Court holds in this regard that the BOT, being
a statutory public authority, is a component of the State. And in view of
the socialist character of the State, the functions of the BOT in protecting
workers from exploitation by implementing the provisions of the Act of
2006, are in fact public/governmental functions and closely related to
those required to be performed by the State in its sovereign capacity.22
The Court, accordingly, arrived at conclusions as to the scope and nature of the law
based on its opinion on justice, equality, right, and wrong. Distilled further from
that judicial opinion has been the true objective or the aspirational value of the law
drawing upon article 8 of the Constitution. Nowhere in the Constitution is there a
greater moral value attached to a legal order than in article 8(2) which declares the
fundamental principles of state policy such as those enshrined in articles 10 and 14
to be “fundamental to the governance of Bangladesh” and mandates them to “ap-
plied by the State in the making of laws” and “a guide to the interpretation of the
Constitution and of the other laws” (article 8(2) of the Constitution).
The test case of Md. Mehdi Hassan attests to an exercise in pragmatism and
democratic fairness in gauging the true proposition of law by subscribing to
the declaration in article 8(2). Does that, accordingly, reveal the true status of
the Constitution itself as a treatise on legal and political morality? Is its pre-
ambular aspiration to “realize . . . 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” an indulgence in a discourse on political morality? I say that it is.
Dworkin believes that any adequate account of the aspirational concept, the
values of legality, and the rule of law must accord prominence to the ideal of
political integrity, that is, that a state should try so far as possible to govern
through a coherent set of principles whose benefit it extends to all citizens.23
The judiciary’s role as an organ of the state is to declare the true and ideal
content of such principles. It would be remiss not to acknowledge that the ju-
diciary is well on its way “to usher in a new era of a liberal and progressive con-
stitutional order” through “the great judicial power entrusted to our judges
by the entrenchment of the jurisdiction of judicial review of administrative and
legislative acts”.24 Md. Mehdi Hassan is but one such example of judicial insight
and pragmatism in progressive jurisprudential development.
22 Md. Mehdi Hassan v Bangladesh (2012) 1 LCLR (HCD) 380, 391–392.

23 Justice in Robes (n 1) 176.
24 Syed Ishtiaq Ahmed, Certiorari: An Administrative Law Remedy (Mullick Brothers 2011) 148.
The rule of law within the constitutional scheme and

the moral reading of the law
Significantly, the Constitution does not provide a definition of what the no-
tion of rule of law is precisely intended to encompass. This, I submit, is by
design rather than oversight and in acknowledgment of the evolving frontiers
of that all-important concept. I subscribe wholly to what Bingham has had
to say in his compelling work The Rule of Law.25 In a similar context of the
draftsmen’s notable omission of an otherwise expected “pithy definition” in
the Constitutional Reform Act of 2005, Bingham observes:
I think, they recognized the extreme difculty of devising a pithy defini-

tion suitable for inclusion in a statute. Better by far, they might reason-
ably have thought, to omit a definition and leave it to the judges to rule
on what the term means if and when the question arises for decision. In
this way . . . it would be possible for the concept to evolve over time in
response to new views and situations.26
However, in deconstructing the rule of law to its bare essence one may look
no further than the preamble to the Constitution where “the people” of Bang-
ladesh, having proclaimed their independence and, through a historic strug-
gle for national liberation, established an independent sovereign Republic by
enacting and giving themselves the Constitution, pledged:
that it shall be a fundamental aim of the State to realize . . . 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.27
In the preamble of the Constitution, the people also afrmed their
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 [they] may prosper in freedom and may make [their]
full contribution towards international peace and co-operation in keep-
ing with the progressive aspirations of mankind.28
Indeed the constituents of the rule of law are readily discernible in the suprem-
acy of the Constitution “as the solemn expression of the will of the people”;29
the fundamental principles of state policy comprising of lofty but judicially
25 Tom Bingham, The Rule of Law (Penguin 2011).

26 ibid 7–8.
27 The Constitution, preamble.
28 ibid.
29 ibid art. 7.
non-enforceable principles “fundamental to the governance of Bangladesh”;30

separation of the judiciary from the executive;31 promotion of international
peace, security, and solidarity;32 equality before law;33 the prohibition against
discrimination;34 and the judicial enforcement of fundamental rights;35 among
others. But even in the plethora of pledges, convictions, aspirations, and guar-
antees one remains hard-pressed to decipher the true essence of the notion of
rule of law.
Perhaps the answer lies latent in the very genesis of the Constitution as a
social contract aiming for the establishment of a democratic society free from
exploitation through limited government. In the annals of the liberal tradition
of political thought, this best corresponds to John Locke’s narrative of the rela-
tion between the Sovereign State and the Sovereign People in the context of the
people being recognised as the legitimate source of the state’s powers. As Held
in Models of Democracy36 has exhaustively discussed, a constitution as a compact
is basically a licence to a limited government upon express conditions attached
marking, in Locke’s vision, the essential transitory device from a state of nature
to that of regulated governance. Held shows that the notion of limited govern-
ment circumscribed by a duty owed to the citizenry is in Locke’s view a licence
granted to regulate the enjoyment of rights informed by a pre-licence reality.
That reality, as evident in the law of nature, is one of any individual’s liberty
being limited by the enjoyment of such liberty by another. Such prohibition
against encroachment into or infringement of enjoyment of another’s rights
reinforces the obligation commonly owed to preserve each other, deterring
the domination of one individual or group by another. This Locke views as the
basic principle of morality as developed within the law of nature.
For Locke, the transition from the state of nature to limited government is
informed, however, by inadequate regulation of guarantees to life, liberty, and
property and the resultant conflicts. Held thinks that the device adopted to
oversee this transition is a social compact to organise into an independent so-
ciety that gives up certain facets of its autonomy to a civil association to govern
in a manner that ideally best serves the governed.37 The citizenry organised in
a civil-political society retains the powers as the final arbiter of the quality of
governance and of the resultant change in the instrument and mode of gov-
ernance. Locke presciently opined that in return for legislative and executive
rights so relinquished by the citizenry, the social compact significantly made
the citizenry the repository of “sovereign power” or capacity to determine
30 ibid art. 8.
31 ibid art. 22.
32 ibid art. 25.
33 ibid art. 27.
34 ibid art. 28.
35 ibid art. 44.
36 David Held, Models of Democracy (2nd edn, Stanford University Press 1996) 74–88.
37 ibid.
the beneficial use of such rights. The consent given actively and directly to
establish a governmental structure led to such consent being deemed to be
expressed through the people’s representatives to govern as trustees as per the
social compact. Locke also envisioned the law-making power to be in conso-
nance with the law of nature, that is, the principles of morality.
The rights to life and liberty, so essential to human existence, also have a
priority attached and are deemed non-derogatory. These are, therefore, im-
mutable, or unalterable. They transcend the process of transformation from
the basic form of human association (i.e., the state of nature) to that of an
independent society and a civil association in the form of a government.
This perhaps was the notion behind, for example, HR Khanna, J.’s dissenting
view in the Indian Habeas Corpus Case that the right to life is a natural right
incapable of suspension at any time.38 As Chandrachud has observed, here
Khanna, J.’s dissent is predicated on the unalterability of natural law.39 The
corollary view is that any attempt to curb such fundamental rights under-
mines the morality of the law. In Khanna, J’s dicta, there is a clear endorse-
ment of Locke’s notion of rights existing in a pre-“civil association” natural
state that transcends the process of transformation of human society and the
source of which shall always be natural law. Accordingly, Khanna, J. found
that article 21 of the Indian Constitution may not be treated as the only or es-
sential repository of the right to life and personal liberty.40 In his view, “even
in the absence of Art 21 in the Constitution the State has got no power to
deprive a person of his life or personal liberty without the authority of law”
and that is “the essential postulate” of the rule of law in every civilised soci-
ety.41 The moral moorings of the rule of law clearly are undeniable in Khanna,
J.’s observation.
Predicated on that premise, it is my proposition that a positivist-naturalist
deconstruction of the ratio of any judgment applying the law in general to
secure substantial justice permits concomitantly the moral construction of the
underlying constitutional/legal system. A 2010 judgment of the High Court
Division best permits, in my view, such deconstruction and reveals the moral
moorings of the rule of law as attested by the Constitution.
In April 2010 the Court delivered a judgment in Mohammad Badiuzzaman
v Bangladesh,42 disposing of two writ petitions touching on the Chittagong
Hill Tracts (CHT) Peace Process. The Court, faced with a constitutional chal-
lenge to the execution of the CHT Peace Accord of 1997 in these cases (“CHT
Cases”), found the Accord to be a political pact, and, thereby, not to be a sub-
ject of judicial review. However, a concomitant and corresponding challenge
38 ADM Jabalpur v Shivakant Shukla AIR 1976 SC 1207.

39 Abhinav Chandrachud, Due Process of Law (Eastern Book Company 2011) 128.
40 HR Khanna, Making of India’s Constitution (2nd edn, Eastern Book Company 2008) 536.
41 ibid.
42 (2010) 7 LG (HCD) 208 (commonly referred to as the CHT Cases).
to the CHT Regional Council Act 1998 stemming from the execution of that
Peace Accord was found to be a colourable piece of legislation given that the
establishment of the Regional Council and its consequential powers envisaged
in the Act were found to be potentially destructive of the fabric of a unitary
republic.
The legal challenge mounted in the two petitions was at once against the
constitutionality of a political process as well as the legislation that it spawned
in the enforcement process. An admixture of politics and law and questions
of legality and justice permeated the deliberations before the Court, thereby,
often constraining the Court to consider: (i) the law as it is and as it ought to
be; (ii) that there is an archetype of law the approximation to which all legal
systems aspire and such an aspiration being a moral one, the law is intrinsically
a moral phenomenon; and (iii) that there is intrinsic moral importance to the
rule of law.
In being asked to determine the validity of the Peace Accord, the ex-
pectation was for the Court itself to devise a more equitable sharing of the
powers between the organs of state of collectively addressing the concerns
of the people in which the executive, in particular, should not feel alone in
dealing with the issue. Generally, opponents of such an enhanced role for
the judiciary baulk at the very idea of any such association and interaction
with the executive as detracts from the judges’ sole fundamental role to
implement the popular and sovereign will, reflected in any legislative enact-
ment. For the court to assume otherwise would be to act in the irreverence
of democracy.
The view is further that interaction with the executive presupposes a level
of specialist knowledge informed by preconceived knowledge of issues and
parties that judges are either not equipped with or not deemed to have in the
discharge of their constitutional functions freely, fairly, and objectively. Judges
are least suited, therefore, to anticipate legislation. Nor should the judiciary
embroil itself in politically charged issues as are best left to the executive. Being
forewarned of such arrogation of authority, the reality can be of the judici-
ary being left to uncomfortably deal with sensitive issues in instances where
the executive has abdicated its responsibility to first address them as a matter
of governance by the exercise of its political power. The fiduciary bond that
the executive has with the people stands negated when unpopular decisions
are left to be made by the courts at their discretion. Indeed, the risk is of the
courts being given or assuming too many discretionary, and perceptibly unfet-
tered, powers by default. A greater ignominy is of the judiciary falling prey
to the machinations of the executive in situations where the responsibility to
make unpopular decisions are shoved onto the courts. Alarming still is the
scenario where electoral calculations lead the executive to resort to constitu-
tional devices to further entrench its position and give rise to the prospects of
the courts ensuring the adherence to the form of law and not to its substance
or morality. The Court in the CHT Cases at least was not faced with such a
predicament.
The Court in the CHT Cases was driven by the rationale of judicial restraint.
Nowhere is the resultant judicial skepticism of the spectre of judicialisation of
politics more evident than in the following extract from the judgment:43
these two Writ Petitions place certain complex political, legal and constitu-
tional questions for our consideration and determination and from which
have stemmed, evidently, deeply entrenched political positions which
could be or ought to have been settled more satisfactorily through an in-
tegrated political process based on a broad consensus at the initiative and
behest of the elected branches of the Government. But that has not been
done and the issues have been left to fester for far too long. The Judiciary
has, therefore, had to step into a peace process in which the Executive and
the Legislature still have a fair share of their responsibility to discharge. It
shall be prudent at this juncture to point out . . . that this Court having so
stepped into that stagnant peace process shall necessarily have to guide the
elected organs of the State through certain pathways to be pursued to re-
vive or resuscitate the peace process with a view to its fruitful culmination.
In that exercise this Court is mindful, however, of the limits on its ability to
make comprehensive, detailed and specific prescription[s] which must remain
within the domain of authority of the elected lawgivers and policy-makers.44
This Court is alerted to the pitfalls of doing otherwise by Justice Sandra
Day O’Connor who[,] musing on her experiences in the U.S. Supreme
Court, [extrajudicially wrote as follows]:
“Our eforts to describe broad legal principles assured by the Constitution
have sometimes run aground when the Court attempted to translate those
principles into detailed, workable rules that achieve the constitutional goal”.45
Justice O’Connor observes that should courts not exercise restraint
in this regard the authority of courts to enforce individual rights “can be
stretched too thin”.
These considerations, accordingly, broadly set the pace for the Court to
uphold the rule of law by making both legal and moral decisions to secure sub-
stantive justice. The Court remained satisfied that the Peace Accord was signed
against the reality of “political activism in the CHT” as had fundamentally to
do with “the absence of express safeguards of tribal rights and interests in the
Constitution” and that the Accord was “but an intermediate stage in a political
process that commenced many years prior to 1997 and is in fact an ongoing
one”.46 The fulfillment of the Accord’s primary objective of securing a political
43 Mohammad Badiuzzaman v Bangladesh (2010) 7 LG (HCD) 208, 219.

44 ibid (emphasis added).
45 Sandra Day O’Connor, The Majesty of the Law: Reflections of a Supreme Court Justice (Random
House 2003) 247.
46 ibid 221 and 223.
resolution of the politico-military conflict, the Court found, inevitably led to

the exhaustion of its “essential political substratum”. Further, the Court found
the Accord to be born of a certain political exigency that informed the mutually
accepted manner of its execution. Accordingly, the treaty was termed a “‘Treaty
of Peace’ that proceeds beyond a mere truce and aims at a permanent end to an
insurgency based on commitments of sustainable peace”.47 But the Accord was
found to be a treaty with a diference. Predicated on the definition of a treaty
being an agreement between belligerent powers stipulating terms of truce and
conditions of peace, the Court found the Accord to answer to this description
with the qualification that it was not entered into between independent entities
both having the right of self-government. The Parbatya Chattagram Jana San-
hati Samiti (“PCJSS”) in this regard was found not possessed of the right of
self-determination. These features cumulatively made a constitutional analysis
upon a strict constructionist approach untenable given that the Accord neither
answered to the description of article 145 “contracts or deeds” nor indeed
to article 145A “international treaties”. The Court, therefore, restrained itself
from a misguided foray into the realm of executive action, and held:
The multi-dimensional Peace Accord does not permit of a neat categori-

zation under the Constitution. Being an essential link in a long-standing
and ongoing political process this intrastate peace pact . . . is not strictly
contemplated for in our Constitution and must, therefore, be found to be
indeterminable as to its nature and validity by reference to the Constitu-
tion. It is here that we find the relevance of and the merit in Dr Kamal
Hossain’s submission that the Constitution indeed lacks in process formula-
tion and the CHT peace process [and] the Peace Accord as its vital com-
ponent, therefore, considered on their own[,] do not indeed permit of a
constructionist approach. In a similar vein Mr Devasish Roy appearing for
the [CHT] Regional Council has argued to this Court’s satisfaction that the
. . . Accord is neither an executive deed nor a contract within the meaning
of article 145, but is merely a political document/agreement setting out the
political goodwill between . . . the Government and the PCJSS representa-
tives of the tribal people to bring an end to the armed hostility in the CHT.48
In the CHT Cases, the Court viewed the Peace Accord as a “checklist of meas-
ures” to be adopted by the elected branches of the state to ensure sustainable
peace, but not as a document creative of “substantive and enforceable rights
and obligations”.49 It is consequentially with a purpose deemed more appro-
priate to its constitutional mandate in judicial review that the Court probed
into the extent to which the legislature may have either discharged or abdi-
47 ibid 225.
48 ibid 226.
49 Ibid 227.
cated its responsibility to best secure the Accord’s implementation within the
constitutional framework. The Court, thus, engaged in examining the validity
of certain amending pieces of legislation of 1998 pertaining to three district
councils in the CHT and the CHT Regional Council.
Two philosophical views dominate in this context, determining the posi-
tioning further of the issue of the morality of law. Debate in this regard has
been dominated by HLA Hart and Lon Fuller from the positivist and natu-
ralist perspectives respectively. Hart, while not wholly denying any necessary
connection between law and morals, sees no reason to draw a corresponding
concomitant connection between the validity of a law and its resultant jus-
tice or injustice. Fuller’s thesis has as its starting point the identification of
“precepts” or “desiderata” that must inform any law-making process in order
to produce good law.50 For Fuller, legal systems within the rule of law frame-
work have to be based on declared rules that are prospective, inherently clear,
entrenched, and permitting of compliance and execution in keeping with de-
clared objectives.51 These cumulatively constitute for Fuller “the inner mo-
rality of law”.52 A legal regime will have its validity gauged by its degree of
compliance with such precepts. For that reason, the quest for total approxima-
tion is seen as a moral aspiration sustaining the argument that law, therefore,
is inherently a moral phenomenon. As Nigel Simmonds highlights in Law as
a Moral Idea, “instances of law count as such in virtue of their approximation
to an archetype which is an intrinsically moral ideal” and that indeed “all in-
stances of law participate in the ideal to some extent”.53
It is this inner morality of law or rather the failure of the CHT Regional
Council Act 1998 to measure up to certain precepts of the archetypical good law
that appears to have dictated the finding against its legality in the CHT Cases.
The objection to the Act of 1998 gauged against Fuller’s desiderata was that the
Act failed to approximate the precepts of being intelligible, free from contradic-
tion, of easy compliance, and its congruity of declaration and enforcement.
It is to be noted at this juncture that Fuller and Hart’s views briefly con-
verge to suggest a separate sphere of operation of the substantive justice or
injustice that may follow from laws. Divergence follows immediately thereafter
in the positivist prescription of the courts being bound by the principle of
absolute fidelity to and strict legality of the black-letter law without resorting
to extraneous considerations. It is here that morality in its substantive sense
enters the fray truly setting apart the naturalist tendency to invite extra-legal
considerations – political, social, and moral – to inform the delivery of sub-
stantive justice. In contradistinction to his inner morality of law, Fuller views
50 Lon Fuller, The Morality of Law (revised edn, Yale University Press 1969). See further Sim-
monds (n 51).
51 Nigel Simmonds, Law as a Moral Idea (Oxford University Press 2007) 65.
52 ibid 69.
53 ibid 100.
this as the law’s external morality reflected in the law’s enforcement to deliver
substantive justice.54
The argument here is of a bigger socio-legal landscape, necessitating greater,
more forthright judicial activism. The caveat to such enhanced activity is that
judges ought not to overreach themselves, thereby, undermining the deference
due from them to the democratic compact. That deference is owed of course to
the sovereign will of the people expressed through a truly representative legislature.
It is with that motto that the High Court Division observed that the CHT
peace process, to be sustainable, must be informed by concerted innovative
eforts at constant evaluation and reinvention and proposed concrete guide-
lines, but only as indicators, of the broad spectrum of issues to be considered
in that regard. In upholding the rule of law, this was the ultimate frontier
that the Court wanted to traverse charting certain pathways for the legis-
lature and the executive to explore. Herein, the Court established the legal
system’s distinct moral virtue of achieving as complete a substantive justice as
permissible.
The judgment in the CHT Cases, read with care, chronicles at length the in-
equities of history visited upon the CHT at material times. It followed, there-
fore, that justice in these cases had not only to be legalistic but also inspired
by the need to do good. Thus, the Court took into account “the political
vicissitudes of the tribal peoples” best introduced in the memoirs of the former
Chakma chief, Raja Tridiv Roy.55 Considered also were statistics and indicators
(e.g., communication, education, non-agricultural land, electrification, health
and sanitation, safe drinking water, annual per capita income, availability of
plain land) that the present Chakma chief and counsel for the respondents in
the CHT Cases, Mr Devasish Roy, submitted indicating that the tribal popula-
tion of the CHT constitute a backward section of society within the meaning
of the Constitution.56
Notably, a paradigmatic shift in international law governing indigenous
populations from an integrationist approach to an approach more assertive of
the indigenous and tribal groups’ entitlement to self-identification and ensur-
ing their empowerment in order that they may exist as distinct peoples gets
highlighted in the judgment. This is so in recognition of Bangladesh’s obliga-
tions as a ratifying state under the ILO Convention on Indigenous and Tribal
Populations, 1957 (Convention No. 107) and the relatively recent ILO Con-
vention No. 169 of 1989. The latter Convention, according to Mr Devasish
Roy, serves as a review of the former, endorsing the paradigm shift “both on
moral and practical grounds”.57
54 Fuller (n 50) 71.

55 Raja Tridiv Roy, The Departed Melody (PPA Publications 2003) 330–331.
56 See the Constitution, art. 28.
57 Mohammad Badiuzzaman v Bangladesh (2010) 7 LG (HCD) 208, 229.
Mindful of its limitations in implementing a peace process as this and of its

limited mandate under judicial review, the Court reminded the executive of
its failings thus:
It has not escaped this Court’s attention that the peace process has not
been served well by [the] inordinate delay in its full implementation and
that time has not indeed been kind to the peace process. The present frac-
tious, volatile and the deeply . . . polarized political situation in the CHT
amply attest[s] to that. It is certainly an irony that the peace process as aims
at democratic governance has not thus far been able to ensure the practice
of democracy in the CHT to any discernibly commendable extent. One
of the best possible ways for the local government or District Councils to
have been actively engaged in the management of their own afairs was to
have regular elections to the District Councils that would not only have
strengthened participatory politics as well as the process of integration of
the peoples of the CHT[,] but would have been an antidote to anarchy
and defused the power of anarchic forces. It is this Court’s considered
view that democratic governance by the active exercise of participatory
politics in the three [CHT] Districts is and always will be the lifeblood of
the peace process and should be encouraged and pursued in all earnest.58
The Court, therefore, proposed inter alia the formation of a statutory public
authority to act as a facilitator of local governance and to act as a conduit
between the elected district councils and the government, the setting up of a
commission to ascertain and determine “backwardness” of the people of the
CHT on the basis of reliable and quantifiable data, and a better concordance
of the municipal law with international law in general and the ILO Conv. No.
107 in particular. It is in this context that the Court enunciated the most far-
reaching of the pathways thus:
It is inevitable that the sustainability of the peace process will depend on

innovation and progressional development of ideas and measures that
shall, however, always need measuring against the Constitution. Should,
in this regard, any kind of exigency demand action not strictly envisaged
in the Constitution, lawmakers shall prudently henceforth allow for the
Constitutional entrenchment of the same.59
Nowhere in the judgment is the paradigmatic shift for moral reasons gaining
currency under the ILO Conv. No. 169 of 1989 better endorsed than this
proposition. It is also a recognition that the impugned Acts, struck down as
58 ibid 239.
59 ibid 240.
ultra vires the Constitution for setting up a “parallel government” and a col-
lective device establishing regionalism and paving the way for the ultimate dis-
mantlement of the state’s unitary fabric, may have fared better with the aid of
constitutional entrenchment sanctioning a level of regional autonomy within
the framework of a unitary state as achieved, for example, in Italy, Spain, and
China.
In the final analysis, this was the stage in the CHT Cases, therefore, at which
the moral considerations became relevant and evident. The view taken was that,
even from a positivist/legalist angle, the law is not a mere system of rules (lex
lata) but encapsulates principles such as that of equity. By skilled application of
such principles to legal rules the judicial process distils a moral content out of
the legal order. On the other hand, subscription to the naturalist point of view
enabled the Court to exercise its inherent discretion to avoid manifest situational
injustice. This was achieved by reference to a whole host of factors – historical,
political, social, economic – extraneous to the black-letter law as is and existing
rules to determine what the law ought to have been and can be (lex ferenda).
The CHT Cases presently await final determination by the Appellate Divi-
sion of the Supreme Court. Pending such determination, it is safe to opine
that these cases have enabled a broadened vision of the concept and essence of
the rule of law. To revert to Bingham’s The Rule of Law:60
The concept of the rule of law is not fixed for all time. . . . (I)n a world
divided by diferences of nationality, race, colour, religion and wealth it is
one of the greatest unifying factors, perhaps the greatest, the nearest we
are likely to approach to a universal secular religion. It remains an ideal,
but an ideal worth striving for, in the interests of good government and
peace, at home and in the world at large.
Is that an ideal, therefore, not worth aspiring for? The people of Bangladesh
in the solemn expression of their “sovereign will” have declared it so, as surely
have peoples all around the world. That very pursuit of an ideal speaks of the
moral virtue of individual legal systems and of humanity collectively. It speaks
no less of law as a moral idea.
Judicial independence as a constituent of the rule of law

It becomes imperative at this juncture to throw light on institutional mecha-
nisms that bolster the rule of law and undertake an analysis of the philosophi-
cal base, the internal workings, and the assumptions implicit in the notion of
judicial independence. I analyse the notion by deconstructing the core con-
cepts that are its important constituents. The objective is not to draw firm
deductions of the ideal arrangement through which this is achieved. Rather,
60 Bingham (n 25) 174.

the aim is to chart pathways the pursuit of which shall be informed by one’s
experience as a stakeholder in the judiciary and the quest for it remaining a
functional and relevant, if not indispensable, organ of the state.
For an all-encompassing definition of judicial independence, one may look
no further than the one found in the UN Basic Principles on the Independ-
ence of the Judiciary:61
The judiciary shall decide matters before them impartially, on the basis
of facts and in accordance with the law, without any restrictions, im-
proper influences, inducements, pressures, threats or interferences, di-
rect or indirect, from any quarter or for any reason.
The terms influences, pressures, and interference are inextricably linked with
any mention of the independence of the judiciary. These notions, as are cor-
relative to forces external to the judiciary and the extent to which they may
bear on the discharge of judicial functions, determine the extent to which the
judiciary may act impartially, that is, free of bias, prejudice, fear, and other
extra-judicial compulsions and constraints. Indeed, the three organs of the
state, in an ideal constitutional structuring, are intended to operate as checks
and balances on each other, as is the overarching aim of the separation of
powers. That view entails the necessity for each branch or organ to discharge
its functions “responsibly and [with] restraint”.62 Experience shows that such
restraint is often elusive, requiring concerted and deliberate eforts at regulat-
ing such separation. That objective, as is the bedrock of a constitutional de-
mocracy founded on the rule of law, is best exemplified in our jurisdiction by
article 22 of the Constitution which enjoins the state to ensure the separation
of the judiciary from the executive organ.
Furthermore, the question of independence is crucial in relation to the
judiciary in light of its constitutional function of not only providing “a con-
structive and purposive . . . interpretation of legislation” but also deciding the
constitutionality of legislation.63 Chief Justice Mustafa Kamal’s observation in
Secretary, Ministry of Finance v Md. Masdar Hossain emphasises that unique
functional status of both the superior and subordinate judiciaries thus:
The Supreme Court and the subordinate courts are the repository of
[the] judicial power of the State. Functionally and structurally judicial
service stands on a diferent level from the civil administrative executive
services of the Republic. . . . [The judiciary] is an independent arm of
61 The UN Basic Principles on the Independence of the Judiciary (n 65).

62 Parliamentary Supremacy and Judicial Independence: Latimer House Guidelines for the Com-
monwealth, 19 June 1998.
63 ibid.
the Republic which sits on judgment over parliamentary, executive and

quasi-judicial actions, decisions and orders.64
The state’s compulsion within such a constitutional framework is to ensure

elasticity in inter-organ linkages, ensuring that a lone organ does not unduly
and disproportionately benefit from an imbalance of power causing such tenu-
ous but essential linkages to irreparably snap.
Indeed, predetermined standards of judicial independence/separation trick-
ling down from international law down to municipal legal regimes constitute
important objective determinants of such independence. There is a plethora
of international guidelines and international law documents reflecting an in-
ternational and regional consensus on the governing philosophy and the plan
of action in this regard.65 International standards stand to be evaluated and
applied in municipal regimes primarily through political will but, more signifi-
cantly, as shepherded by the judiciary. While separation from the other organs
of government remains the preliminary objective of independent functioning,
it definitely is not the sole determinant of judicial strengthening/independ-
ence. External institutional separation additionally demands complementary
internal initiatives spearheaded by the judiciary itself. This lays the ground for
drawing a distinction between institutional independence (constitutionally/
statutorily declared) and judicial functional autonomy in the efcient and
transparent delivery of justice.66 There is, thus, a need to appreciate the mutu-
ally complementary yet distinct notions of constituting the judiciary and the
64 (2000) 20 BLD (AD) 104, 125.

65 See the UN Basic Principles on the Independence of the Judiciary, the Bangalore Principles of Ju-
dicial Conduct 2002, and the Commonwealth (Latimer House) Principles on the Three Branches
of Government 2003, which exemplify a plethora of similar other documents.
66 On the judicial autonomy of action (and by extension judicial independence) in Bangladesh,
note the rarely visited provisions of the Constitution in article 107 in general (read with arti-
cles 113 and 116) and article 107 (3) and (4) in particular. In a unitary state system in which
the propensity is for centralised power, these provisions, as are in a state of disuse, sanction an
equitable sharing of judicial administrative power in the “bicameral” institutional framework
of the Supreme Court. The centrifugal scheme in article 107, thus, necessitates a distribu-
tion of administrative power between the High Court and Appellate Divisions and mandates
the exercise of coextensive authority consequentially. Clauses (3) and (4) of art. 107 permit
senior judges of either Division to determine the constitution and reshufing of benches in
their respective Divisions. Not only has no chief justice ever invoked their authority under art.
107 to so empower the next most senior judges of either Division, but there also is noted a
conscious design to bypass and remove from the judicial institutional framework any notion
of such coextensive administrative status. This, too, has had the unsalutary consequence of
ignoring the seniority principle in the assignment of tasks and for determining eligibility for
the elevation of judges to the Appellate Division from the High Court Division. Institution-
alised empowerment of the senior judges of the High Court Division under art. 107(3) and
(4) would have deterred arbitrary and controversial selection of candidates for elevation to the
Appellate Division at the whim of the executive acting through the chief justice.
functioning of the judiciary.67 Note that the latter aspect presupposes con-
stitutional latitude at judicial self-governance by internally framed rules and
regulations as envisaged, for example, in article 107(1) of the Constitution.68
Institutional independence coupled with accountability demands that the
mode of appointment and the regulation of tenure of service and the disciplin-
ing of judges must be free of executive and legislative interference. Governing
standards of accountability endorse and require a Code of Ethics and Conduct
to be devised and implemented by the judiciary to gauge accountability69 and
the enforcement of disciplinary measures through bodies or tribunals that are
“independent and impartial”.70 Here, the preferred mode of oversight and
regulation is one of collegiate authority in the form of a judiciary council/
body with majority representation from the judiciary. While lay representation
on such bodies or councils, which are assigned independent and deliberative
powers of appointments and disciplining,71 remains almost universally recom-
mended, the degree of political representation therein is either envisaged to be
minimal72 or indeed emphatically reduced to none at all.
Given the objectives of judicial independence, autonomy, and accountabil-
ity, broadly stated, the question remains as how best to achieve these. Is there
one panacea mechanism that can immediately be served up as a potent elixir,
or is the process more evolutionary in nature brought about by trial and error
with a large dose of vision and fortitude admixed? Pragmatists will in all prob-
ability argue for the latter pathway.
The state’s constitutional and statutory initiatives at the separation of the
judiciary must unavoidably vary according to its own constitutional political
framework dictates. Inherent institutional strengths, self-restraint, and ear-
nestness inculcated over time through trial and error at securing independent
judicial functioning may arguably deter a politicised appointment and removal
67 Latimer House Guidelines (n 65).

68 See the Supreme Court of Bangladesh (High Court Division) Rules 1973 (esp. chapter 1A:
“Business Not of a Judicial Character”) framed by the Court under art. 107. The High Court
Division Rules provide for the setting up (with powers and functions) of various special com-
mittees of judges for the superintendence and control over the afairs of all courts and tribu-
nals subordinate to the High Court Division (HCD) and overseeing case management and
making recommendations to that efect as applicable both to the HCD and the subordinate
courts.
69 Responsibility here is vested in the judiciary under the Bangalore Principles’ implementation
mechanism.
70 See, for instance, Latimer House Principles (n 65).
71 For judicial appointments in Bangladesh, there is no such body at all. For a lucid discourse on
the opaque and dysfunctional judicial appointment culture, see, Imran A Siddiq, ‘The Judicial
Appointments Process in Bangladesh: In Search of Transparency’ in Chowdhury IA Siddiky
(ed), The Rule of Law in Developing Countries: The Case of Bangladesh (Routledge 2018) 60.
72 See also Richard Stacey and Sujit Chowdhury, ‘International Standards for the Independence
of the Judiciary’ NYU Law Briefing Paper 41, September 2013 (as endorsed in the UN Spe-
cial Rapporteur on the Independence of Judges and Lawyer’s Annual Report 2009).
procedure to slide irreversibly into the depths of constitutional anarchy.73 But

far overwhelming is the apprehension that in systems with weak institutional
frameworks, the notion of separation of powers remains elusive and fraught
with risks of upsetting the inter-institutional balance. The argument, there-
fore, is for elements of independence to be constitutionally, legally, and insti-
tutionally formalised to clearly delineate the spheres of the judicial function,
free of executive and legislative interferences.
The Bangalore Principles addressed to the judiciary aim at securing three
primary objectives: (i) providing a framework for ethical judicial conduct; (ii)
assisting the executive, the legislature, lawyers, and the public in better un-
derstanding and aiding the judiciary; and (iii) ensuring judges’ accountability
to independent and impartial institutions. Predicated on these objectives, the
core values of the judiciary being independence, impartiality, integrity, propri-
ety, equality, and competence and diligence emerge as the six core Bangalore
Principles supplemented by extensive implementation mechanisms.
The evolving contours of judicial independence and autonomy require one
to adopt a more nuanced approach with regard to the concept of the rule of
law. A more empowered and independent judiciary is better placed to explore
the evolving frontiers of the rule of law beyond the basic constituents of any
enactment by the legislature and to interpret and apply the law efectively.
That enthronement of the law,74 it is evident, clearly places the independent
judicial function of interpreting and applying the law at the forefront of the
separation of powers under the Bangladeshi constitutional regime. As noted
previously, the constituents of the rule of law are readily discernible in the
constitutional supremacy clause (art. 7: Constitution as the solemn expression of
the will of the people) and the directive for the separation of the judiciary from
the executive organ (art. 22). These provisions clearly attest to an independ-
ent and autonomously functioning judiciary submitting only to the popular
will while sitting in judgment over the legislative, executive, and quasi-judicial
actions/inactions and decisions. The republican moorings of the Constitution
are, therefore, undeniable as is its potential for aiding a better understanding
of judicial independence and autonomy under the Bangladeshi constitutional
dispensation.
Despite such constitutional certainties, however, we would be unduly com-
placent and myopic in indefinitely nurturing a straitjacketed view of achieving
and sustaining judicial independence and autonomy in Bangladesh. Judiciaries
around the world today are readily adapting to altered realities, burgeoning
expectations, and self-realisations at serving not only as an organ of the State
but as a relevant one. To that end, visionaries continue to guide the strength-
ening of the judiciary, robustly renegotiating its relationships with the other
73 O’Connor (n 45) chaps. 3 and 10.

74 See also Bingham (n 25) 26.
competing organs and engaging more beneficially with its constitutional and
natural constituency, the general public.
Conclusion
This chapter has analysed the concept of the rule of law within the Bangla-
deshi constitutional framework with reference to some leading constitutional
decisions written by the author as a judge. It highlighted the centrality of the
judiciary’s role in upholding the rule of law by punctiliously investigating and
formulating the true proposition of the law based on notions of justice, equity,
and fairness. Predicated on the notion that the constant renewal of consti-
tutional content establishes the Constitution as a living and evolving social
contract, this chapter canvassed too the idea that judicial review permits con-
stitutional growth and how best this can be achieved depends both on judicial
perceptions of the rule of law and the position of independence and autonomy
of action from which an empowered judiciary operates.
6 Judicial policy-making by the
Supreme Court of Bangladesh
Md Abdul Halim
Introduction
There have been several instances of judicial policy-making in Bangladesh
in the form of either political policy-making in judicial review proceed-
ings or in the form of declaring constitutional amendments unconstitu-
tional. Although there is no dearth of foreign legal literature on judicial
policy-making, the available literature in Bangladesh has failed to address
this trend of judicial policy-making. It is against this background that this
chapter examines two important judicial review judgments, to argue that
there is unprincipled unconstitutional policy-making by the Supreme Court
of Bangladesh.
The concept of judicial policy-making

There is little consensus on the meaning of ‘judicial policy-making’, although
this has been a key area of study in constitutional law and theory. The idea that
the Supreme Court plays the role of policy-makers is not new.1 In 1957, Dahl
claimed that the US Supreme Court is not only a legal institution but also a
political one and that it makes national policies.2 Following Dahl’s argument,
a series of articles claimed that the US Supreme Court makes policies even
beyond its usual judicial review boundaries.3
In agreement with Dahl, Glick wrote about how diferent approaches to
judicial policy-making work among diferent institutions of democracy.4 The
1 EM Whinney, ‘The Supreme Court and the Dilemma of Judicial Policy-Making’ (1954) 39
Minn L Rev 837; L Epstein, J Knight, and AD Martin, ‘The Supreme Court as a Strategic
National Policymaker’ (2001) 50 Emory LJ 583.
2 RA Dahl, ‘Decision-Making in a Democracy: The Supreme Court as a National Policy-Maker’
(1957) 6 J Public Law 279 (finding that 86 provisions of federal laws had been struck down by
the US Supreme Court in 78 cases during the first 167-years’ history of the Court).
3 G Rosenberg, ‘The Road Taken: Robert A. Dahl’s Decision-Making in a Democracy: The Su-
preme Court as a National Policy-Maker’ (2001) 50 Emory LJ 613.
4 HR Glick, ‘Policy-Making and State Supreme Courts: The Judiciary as an Interest Group’
(1970) 5(2) Law & Soc Rev 271.
DOI: 10.4324/9781003276814-8
Judicial policy-making by the Supreme Court of Bangladesh 101
most common sources of judicial policy are decisions in which judges provide
new solutions to problems and conflicts presented to them. Significant policies
may be established in a single case or policy may develop gradually in a series
of cases dealing with similar situations. This form of policy-making frequently
occurs without much direct interaction between courts, legislatures, and ex-
ecutive agencies.5 This is what may be called ‘internal’ judicial policy-making,
which is consistent with the principle of constitutionalism. Glick further states
that even if relevant cases do not come before the court, or if judges are re-
stricted in their decisions by existing statutes or issues of jurisdiction, they may
still develop policies for several purposes: first, to establish a policy that cannot
be implemented by the courts due to limitations on their judicial power; sec-
ond, to influence governmental policy outside the regular channels of judicial
decision-making; and third, to make policy in the area of judicial-legislature in-
teractions.6 This third category of policy-making, Glick suggests, has received
much emphasis in the politico-legal area in recent years. By using this ‘leg-
islative policy-making strategy’, as Dahl and Glick suggest, the US Supreme
Court has acted as a protector of fundamental minority rights against majority
tyranny.7 Although the US Supreme Court had struck down federal or state
laws, it had been done only because these statutes were contrary to rights or
other provisions in the US Constitution. The policy of striking down a law is
legitimate and within the limits of judicial review as envisaged in Marbury v
Madison.8
I now turn to the form of judicial policy-making that can be consistent
with constitutionalism. A permissible form of judicial policy-making in its
strategy or method must pursue a goal of either improving the judiciary or
protecting the rights of the people. In this regard, Dahl asked three ques-
tions: (i) who benefits from the policy-making by the court; (ii) how does
the court’s role as a policy-maker fit into the notion of a democratic political
system; and (iii) what has been the fate of the court’s policy-making activity
(has it survived or has it been modified/reversed or ignored)?9 It appears
that Dahl identifies two essential requirements for a judicial strategy to be
considered a policy: first, the strategy or the method must have a goal of
pursuing constitutionalism or rights protection; and, second, the policy must
have a sustainable efect. In other words, it must either be adopted by the
parliament by any subsequent legislation or it must lapse with time but still
leave a far-reaching impact on constitutionalism.10 Judicial policy-making,
as some proponents of Dahl’s theory suggest, is a strategy that, in addition
5 ibid.
6 ibid.
7 JD Casper, ‘The Supreme Court and National Policy Making’ (1976) 70(1) The American
Poll Science Rev 50.
8 (1803) 5 US 137.
9 Casper (n 7) 51.
10 ibid.
102 Md Abdul Halim
to pursuing these stated goals, may also lead to supporting legislation or

results in personal or group benefits for the judiciary.11 The latter type of
policy-making is mostly absent in the judicial practice of the US system but
is rampant in Bangladesh.12
Political policy-making by the Supreme Court of Bangladesh

In some constitutional systems, particularly in unstable democracies, schol-
ars have identified the trend of judicial engagement with unconstitutional
constitutional amendments. Bangladesh is one such jurisdiction.13 A court’s
decision striking down or endorsing any constitutional amendment is a form
of judicial policy-making. Some scholars have, however, evaluated the scope
of permissible judicial review of constitutional amendments under the doc-
trine of basic structure in Bangladesh.14 However, the available literature has
failed to address the trend of judicial policy-making in judicial review cases
generally.
In Bangladesh, there have been several instances of judicial policy-making
in the form of political policy-making or in the form of declaring constitu-
tional amendments unconstitutional.15 It is not my intention to argue that
this policy-making of annulling/endorsing constitutional amendments by the
Supreme Court is barred or illegal. What I argue is that judicial policy-making
by the Supreme Court in some cases has been undesirable and clearly po-
litical, and, hence, contrary to constitutionalism. Given the limited scope of
this chapter, I will not analyse judicial policy-making in all areas of adjudica-
tion including the field of social and economic rights. I will instead analyse
two cases of political judicial policy-making, one concerning judicial review of
political issues and the other involving constitutional amendments, to assess
11 See RS Kay, ‘Judicial Policy Making and the Peculiar Function of the Law’ (2007) 40 Con-
necticut L Rev 1261; Whinney (n 1).
12 I have discussed this elsewhere. See MA Halim, The Supreme Court and Administration of
Justice (in Bengali) (1st edn, CCB Foundation 2015).
13 For details, see Rehan Abeyratne and Bui N Son, The Law and Politics of Unstable Consti-
tutional Amendments in Asia (Routledge 2022); Mark Tushnet and Madhav Khosla (eds),
Unstable Constitutionalism: Law and Politics in South Asia (Cambridge University Press
2015).
Scholars Publishing 2011) 112–118. See further S Krishnaswamy, Democracy and Constitu-
tionalism in India: A Study of Basic Structure Doctrine (Oxford University Press 2011).
15 The Supreme Court for the first time reviewed a constitutional amendment (8th Amend-
ment) in 1989 in Anwar Hossain Chowdhury v Bangladesh (1989) BLD (Spl) 1, where it
adopted the doctrine of basic structure, borrowing the concept from the Indian decision in
Kesavananda Bharati v State of Kerala (1973) AIR SC 1461. The judicial policy-making in
the Anwar Hossain Case is found legitimate and desirable by scholars. See Mahmudul Islam,
Constitutional Law of Bangladesh (3rd edn, Mullick Brothers 2012) 522–527; Hoque (n 14)
112–118.
whether or not judicial policy-making in the two selected cases is legitimate or

constitutional.
The 13th amendment judgment and mega judicial

policy-making
In Md Abdul Mannan Khan v Bangladesh,16 the Appellate Division held that
the 13th Amendment to the Constitution providing for interim caretaker gov-
ernment (CTG) was unconstitutional. In its brief verdict of 10 May 2010, the
Appellate Division held as follows:
The Constitution (Thirteenth Amendment) Act, 1996 is prospectively

declared void and ultra vires the Constitution. The election to the Tenth
and the Eleventh Parliament[s] may be held under the provisions of the
above-mentioned Thirteenth Amendment Act.
The parliament, however, in the meantime, is at liberty to bring nec-
essary amendments excluding the provisions of making the former Chief
Justices of Bangladesh or the Judges of the Appellate Division . . . the
head of the Non-Party Caretaker Government.
The 13th Amendment Act was declared unconstitutional on the ground of

being violative of ‘democracy’ as one of the ‘basic structures’ of the Con-
stitution. Declaring a constitutional amendment ultra vires by applying the
doctrine of basic structure is legitimate since the decision in the 8th Amend-
ment Case.17
First, the short facts of the 13th Amendment Case can be described. It was
in 1990 when political parties opposing the then autocratic ruler HM Ershad
discussed the possibility of a better environment for free and fair national elec-
tions with the help of an interim caretaker government (CTG). They jointly
made a demand for it. After the resignation of General HM Ershad in Decem-
ber 1990, the three alliances of political parties nominated the then chief jus-
tice Shahabuddin Ahmed, to head the interim government. Although the first,
CTG of 1990 was intended to help the country’s transition from authoritari-
anism to democracy, it was the Awami League, the then opposition party dur-
ing the end of the term of the first post-democratic transition government that
spearheaded a very strong movement for the introduction of a constitutional
CTG. The then ruling party BNP conceded to the opposition’s demand for a
CTG when it adopted the CTG system through the Constitution (Thirteenth
Amendment) Act 1996. However, political unrest was ever-present ahead of
16 (2012) 64 DLR (AD) 1. On this, see MA Halim, The 13th Amendment Judgment: An Analysis
(CCB Foundation 2013).
17 See Chowdhury (n 15). See also Ridwanul Hoque, ‘The Politics of Unconstitutional Amend-
ments in Bangladesh’ in Abeyratne and Son (n 13) 210–228.
104 Md Abdul Halim
every national election since the introduction of CTG in 1996. In particular,

from 2006 onward the CTG system became increasingly controversial as the
ruling party had always attempted to use the system in their favour. In this
context, lawyer M. Saleem Ullah filed a constitutional petition (writ petition)
before the High Court Division in 1999.18 In that case, the High Court Divi-
sion on 4 August 2004 held that the CTG system was not unconstitutional
because it did not change the basic structure of the Constitution. On appeal,
the Appellate Division by a 4 to 3 decision on 10 May 2011 overturned the
unanimous judgment of the High Court Division, declaring unconstitutional
the CTG system that lasted for 15 years.
In this case, the Supreme Court has exercised its judicial review power
over a constitutional amendment by going far beyond its limits and has,
thereby, engaged in a ‘mega’ judicial policy-making.19 After the short judg-
ment of 10 May 2011, the parliament omitted the whole CTG system from
the body of the Constitution. The judicial decision was acted upon by the
parliament on 3 July 2011, but long before the full verdict of the Appellate
Division was released on 15 September 2012. From the point of view of
policy-making, the Supreme Court has invalidated the 13th Amendment
with three main purposes. First, to favour the political interest of the party
in power so that the ruling party can perpetuate its tenure in ofce. Ironi-
cally, the same party, the Awami League, which took the advantage of the
court decision, is still in power following the judicial and parliamentary
annulment of the CTG. There are credible allegations of vote-rigging and
malpractices in all national elections since the omission of CTG.20 Second,
the personal interest of judges who were in the majority also played a role in
their decision. The appeal against the judgment of the High Court Division
was pending since 2004, but it was only after Justice Haque took the ofce
of chief justice on 30 September 2010 that the appeal was quickly taken
up for hearing.21 Justice Haque delivered the short judgment as the author
judge, just eight days before he retired on 18 May 2011.22 Further, he de-
livered the judgment in complete disregard for the opinion of all but two of
the eight amici curiae. All three judges who concurred with the chief jus-
tice, in this case, were eventually appointed as chief justices of Bangladesh.23
After his retirement as the chief justice, Mr Haque was appointed the chair-
man of the Law Commission of Bangladesh, a position he has held since
18 Writ Petition No. 4112 of 1999.

19 Ran Hirschl, ‘The Judicialization of Mega Politics and the Rise of Political Courts’ (2008) 11
Annual Review of Poll Sc 93–118.
20 A Riaz, Disappearance of Democracy (in Bangla) (Prothoma Prokashon 2021) 211.
21 Ridwanul Hoque, ‘The Judicialization of Politics in Bangladesh’ in Tushnet and Khosla (n 13)
284–285.
22 ibid.
23 ibid 285–286. The three judges were: Md Muzammel Hossain, SK Sinha, and Syed Mahamud
Hossain JJ.
2012. I would, therefore, argue that what the Supreme Court has done in
this case is pure political policy-making with a far-reaching negative impact
on Bangladeshi constitutionalism. The political and personal interests of the
four judges in the majority outweighed the interests of democracy, constitu-
tionalism, and judicial independence. Third, the doctrines of ‘political ques-
tion’ and ‘separation of powers’ were not considered at all by the Appellate
Division in this case. When the CTG system was introduced to the Consti-
tution, it was introduced as a political device only to strengthen democracy
and make it sustainable. Mr Mahmudul Islam, an amicus curia, along with
the majority amici curiae, opined that ‘although the provisions of the CTG
suspend representative government for [the] short interregnum, it ensures
operation of democracy in the country. In social engineering[,] there is no
panacea which can cure all political maladies in all places and for all times’.24
It is a universally settled principle of judicial review that the judiciary should
not intervene in politics because doing so would be violative of the consti-
tutional principle of separation of powers.
However, the Supreme Court avoided the doctrine of a political question in
this case, although it cited the US Supreme Court case of Baker v Carr, which
established that the courts must not resolve a political question.25 Importantly,
the US Supreme Court exercised judicial review to strike down laws in many
cases,26 but it never declared any constitutional amendment unconstitutional.
In a case where Congress did not follow the amendment procedures, for ex-
ample, it held that a Constitutional amendment is a ‘political question’ and is
not subject to judicial review.27 Although the Supreme Court of Bangladesh
has established the authority to annul a constitutional amendment, there are
constitutional limits on that judicial power.28 In the 13th Amendment Case,
the Court went beyond its limits.
Fourth, this longest-ever judgment in the constitutional history of Bang-
ladesh29 is a non-speaking judgment in the sense that it failed to show how
the 13th Amendment or the CTG system violated ‘democracy’, a basic fea-
ture of the Constitution.30 The Court, in contrast, ignored that the CTG
24 Islam (n 15) 446, 551–552, 858, 859.

25 (1962) 369 US 186.
26 Hollingsworth v Virginia (1798) 3 US 378 (on the constitutionality of 11th amendment);
National Prohibition Cases (State of Rhode Island v Palmer, and Seven Other Cases) (1920)
253 US 350; Dillon v Gloss (1921) 156 US 368; United States v Sprague (1931) 282 US 716.
27 See Coleman v Miller (1939) 307 US 433.
28 See R Dixon and D Landau, ‘Transitional Constitutionalism and a Limited Doctrine of Un-
constitutional Constitutional Amendment’ (2015)13 Int’l Journal of Constitutional L 606.
See also D Landau, ‘Abusive Constitutionalism’ (2013) 47 UC Davis L Rev 189.
29 See Halim (n 16). The judgment was 633 pages long in a reported version.
30 ibid 713–745. ‘Democracy’ was declared to be a ‘basic feature’ feature in the 8th Amendment
Case.
106 Md Abdul Halim
strengthened the constitutional mandate of free and fair elections as part of

democracy. The Court held:
according to . . . Article 123(3) of the Constitution[,] election to parlia-

ment would be held 90 days before the expiry of the tenure of parliament
and all MPs would remain as MPs as they were during the poll time[,]
thus leaving no vacuum in people’s representation.31
As this statement suggests, the Court verily engaged in politics as it ignored the
constitutional conventions and practices when interpreting article 123 of the
Constitution. In parliamentary democracies, parliaments are by and large dis-
solved before national elections. In Australia, for example, the government goes
into a caretaker mode once the elections are called for and are unable to make
any major decisions. In this case, the Court did not consider these practices in
other democracies. To put it simply, the Court enforced issues of ‘pure politics’
through this judgment. Given that it is not the function of the Court to enter
into academic discussion or enforce political preferences, it arguably veered into
politics rather deliberately, which is nothing but an illegitimate form of mega-
policy-making.32 The choice of the Supreme Court to resort to an abusive inter-
pretation is against the principle of presumption of validity of the provisions of
the Constitution.
Fifth, I argue that in this case, the Supreme Court resorted to legislative
policy-making when it declared CTG void and at the same time very contra-
dictorily endorsed the provision of CTG as lawful for the next two upcoming
parliamentary elections. Unprecedentedly, the Court directed the parliament
to hold the next two general elections in a particular manner by excluding the
chief justices from the CTG.33 The exclusion of chief justices when forming a
CTG was a built-in option for the political parties to resort to, within the con-
stitutional provisions. The Court, thus, apparently enforced its preference for a
political system. In this regard, eminent jurist Mahmudul Islam wrote as follows:
When the judiciary, in the exercise of its power of judicial review, kills a
piece of legislation, it cannot at the same time inject life into it for any
future time. The Constitution has not provided the judiciary with an
intensive care unit equipped with artificial life-support mechanism.34
Sixth, by holding that ‘the constitutionality of the 13th Amendment is to

be tested against the principles of the original Constitution’,35 the Supreme
31 ibid 395.
32 Hirschl (n 19).
33 Halim (n 16) 369. See also Islam (n 15) 858.
34 Islam (n 15) 858.
35 Halim (n 16) 369.
Court usurped the ‘constituent power’,36 which only the parliament can ex-
ercise in a limited manner. It was the authority of the parliament to do away
with the system of CTG, and not of the Court. In striking down the 13th
Amendment, the Supreme Court seems to have stepped into the shoes of
the forefathers of the Constitution as well as the then parliament.37 The 13th
Amendment decision can, thus, be argued as being an amendment by the
judiciary.
Seventh, in directing the parliament to amend the Constitution to hold
elections in a particular manner,38 the Supreme Court acted as a supra-
parliamentary body, which is not only prohibited by the doctrines of judicial
review39 and separation of powers but also under article 106 of the Constitu-
tion. Under article 106, the Supreme Court can issue advisory opinions on
any constitutional issue if only the President makes a constitutional reference
to the Court for its opinion.40
The case concerning the broadcasting of the Al Jazeera

documentary
In the Al Jazeera Documentary Broadcast Case,41 the Court intervened in a
way that led to unprincipled policy-making. The issue was whether judicial re-
view power could be exercised over a documentary broadcast by a foreign tele-
vision network. In this case, the High Court Division (HCD), without issuing
any rule nisi, suo motu directed the Bangladesh Telecommunication Regula-
tory Commission (BTRC) to take immediate steps to stop further streaming,
in Bangladesh, of the Al Jazeera Channel/Network’s video documentary titled
All the Prime Minister’s Men.42 As I argue next, this case is one of the recent
examples of political policy-making by the Supreme Court.
First, the short facts of this case can be outlined. A lawyer practising in the
Supreme Court filed this writ petition under article 102 of the Constitution
36 The theory of ‘constituent power’ is used to define the relationship between constituent and
constituted power as a delegation of limited authority. See Yaniv Roznai, Unconstitutional
Constitutional Amendments: The Limits of Amendments Power (Oxford University Press
2017) 105–134. See further Richard Albert, Constitutional Amendments: Making, Breaking
and Changing Constitutions (Oxford University Press 2019) 217.
37 The original Constitution of 1972 was adopted by the Constituent Assembly, which had con-
stituent power as opposed to the derivative constituent power of a parliament.
38 Halim (n 16) 408.
39 The judicial review power does not allow judges to decide on a legal matter which is not an
issue before them.
40 Neither the US Supreme Court nor its UK counterpart provides any advice to the govern-
ment or any direction to the parliament in the way the Supreme Court of Bangladesh has done
in the 13th Amendment Case. See Muskrat v US (1911) L Ed 246, 252; 219 US 346 (1911).
41 Md Amanul Kabir Emon v Bangladesh (Writ Petition No. 1839 of 2021, High Court Divi-
sion, judgment 16 Feb 2021, (herein after Al Jazeera). (2020) 8 CLR (HCD) 128.
42 ibid paras 96–97.
108 Md Abdul Halim
seeking certain remedies, amongst others, to ban the broadcasting of Al Ja-

zeera in the country and to remove the contents of the Al Jazeera documen-
tary All the Prime Minister’s Men from social media and streaming platforms.
The applicant sought a ruling and direction so that the contents of this video
are removed from Facebook, YouTube, Instagram, and Twitter by the public
authorities, as the video, it was argued, was spreading malicious, false, defama-
tory, and misleading information about the prime minister and the govern-
ment ministers.43 The video report was released on 1 February 2021 on social
media and millions of people from Bangladesh and beyond viewed it. How-
ever, in response to this video, the Army headquarters issued a statement on
15 February 2021 criticising the video documentary, claiming that the video
was produced to deliberately spread false, unreliable, speculative, and fabri-
cated information to damage the reputation and capability of the government
and the Bangladesh Army.44
The petitioner contended that Bangladesh was wrongly and maliciously
portrayed as a mafia state in this video documentary.45 The petitioner’s further
contention was that under section 8 of the Digital Security Act 2018, the law
enforcement agencies, through the director general of the Digital Security
Agency and the inspector general of police, may request BTRC to remove or
block any data or information propagated on digital media which may hamper
the solidarity, financial activities, security, defence, religious values, or public
discipline of the country or which may incite racial hostility and hatred.46 The
petition was filed in the form of a PIL, and, upon a preliminary hearing, the
court set out six points for its decision and sought for opinions of six amici
curiae.47
The main legal issues before the court and for the amici curiae were, among
others: (i) whether the petitioner had any locus standi; (ii) whether the peti-
tioner was ‘any person aggrieved’ under article 102 of the Constitution; (iii)
whether any order in the form of a writ of mandamus could be issued and if
so whether the order could be enforced against an international news channel,
namely Al Jazeera; (iv) whether the petition was maintainable (that is, whether
it had an arguable case); and (v) whether any direction is required to be passed
to stop the airing the documentary.48
Five out of six amici curiae opined that the petitioner had no locus standi
to file the writ petition because the petitioner himself was not afected by the
broadcasting of the documentary and the petition did not seek to enforce
43 ibid para 1.
44 ibid para 10.
45 ibid para 11.
46 ibid para 5.
47 The amici curiae were chosen from amongst the senior members of the Bar who are mostly
known sympathisers of the two major parties, the Awami League and the Bangladesh Nation-
alist Party. Exceptions were Mr Kamal ul-Alam, Mr Probir Neogi, and Dr Shahdeen Malik.
48 Al Jazeera (n 41) para 11.
any of the fundamental rights of the poor and disadvantaged people in the
country.49 The Court also found, in line with the majority amici curiae, that
the petitioner was not ‘any person aggrieved’ on the ground that nothing had
been asserted by the petitioner as to which of the fundamental rights of the
petitioner had been violated.50
On the issue of the maintainability of the writ petition, the Court ruled
that since the petitioner did not seek remedies from the regulatory authorities
before invoking the writ jurisdiction, which is a requirement of article 102, the
petition was not maintainable.51
On the substance of the petition, the Court held that the two public au-
thorities concerned did not make any request to BTRC as per section 8 of
the Digital Security Act 2018 to enable it to remove or block the contents,
it could not pass any direction against the BTRC.52 The Court held further
that as per sections 29 and 31 of the 2018 Act, publishing or transmitting any
defamatory information on any website or in any other electronic format that
has the potency to create enmity, hatred, or hostility among diferent com-
munities in society is a punishable ofence to be dealt with by a criminal court
and, hence, no constitutional remedies could be enforced against Al Jazeera
in Bangladesh.53 The Court acknowledged that the government reserves legal
authority to block any content on any digital platform; and therefore, an inter-
vention of the court in a judicial review proceeding was uncalled for.54
The Court, therefore, disposed of the writ petition without issuing any rule
nisi or remedies. However, in complete disregard for its findings and opinions
of the majority amici curiae as well as long-standing judicial practice, the Court
at the same time issued a suo motu (of its own motion) direction to the BTRC.
The respondent BTRC was directed to ‘take immediate measure requesting the
owning company of those social media that is, Twitter, Facebook, Instagram
[and] YouTube not to upload or stream the documentary as mentioned above
nationally and internationally any further through any link and website’.55 This
action was also not in terms with the rules of the Court as I will discuss.
It is not my argument that the High Court Division (HCD) lacks the power
to issue suo motu direction. My argument is rather that the HCD exercised its
suo motu power going far beyond the limits of this power and engaged in ju-
dicial policy-making by abusing its constitutional power under article 102 of
the Constitution. This phenomenon has been described by some scholars as
‘abusive constitutionalism’.56
49 ibid para 76.

50 ibid para 77.
52 ibid para 79.
54 ibid para 85.
55 ibid para 97.
56 Landau (n 28) 195.
110 Md Abdul Halim
First, when the Court found that the petitioner did not have either locus
standi or reasonable grounds in filing the writ petition as a PIL, the only
option open to the Court was to dismiss the petition. The Court did not
show any reason or describe the procedure based on which it could pass a suo
motu direction in a PIL.57 The Court acted not in accordance with, but rather
against, the rules relating to its suo motu jurisdiction under the High Court
Rules 1973.58 By not adhering to these mandatory procedures, the Court
abused the process and substance of its jurisdiction. Second, in Mohammad
Tayeeb v Bangladesh59 the Appellate Division held that the HCD has the power
to issue a suo motu rule based on a newspaper report or media report provided
that there is an infringement of fundamental rights and the infringement is of
great public importance.60 The Court further held that the High Court Divi-
sion, while issuing the suo motu rule, should not usurp the role of the executive
government keeping in view the principle of separation of powers.61 However,
in the instant case, the HCD passed suo motu direction in a PIL case in clear
violation of not only the case law of the Appellate Division but also the High
Court Rules of Procedure.
Third, and most importantly, when a PIL case does not lie in writ juris-
diction, a suo motu rule or direction cannot be issued either. This is simply
because the suo motu jurisdiction has been an extended form of PIL. Since the
Court held that the petitioner lacked standing, it could not issue the remedy
suo motu, that is, independent of that dismissed litigation. Thus, the suo motu
direction issued in this PIL case is arguably unconstitutional.
Fourth, in NBR v Abu Sayeed Khan62 the Appellate Division had set four-
teen guidelines to be considered by the HCD while passing any order or issu-
ing any rule in a PIL case. In the instant case, the HCD needed to state which
of the guidelines it was using to base its direction against the BTRC.
Fifth, while passing the direction, the Court relied on the submissions of
the attorney-general and the counsel for the BTRC, but it ignored the views
of the majority amici curiae. The Court simply stated that based on the sub-
missions of the attorney-general, it was of the view that it ought to exercise
the power of judicial review under article 102.63 The Court’s basis of suo motu
direction was not explained enough, which is contrary to the impartial dispen-
sation of justice.
57 See for details R Hoque, ‘Suo Motu Jurisdiction as a Tool of Activist Judging: A Survey of
Relevant Issues and Constructing a Sensible Defence’ (2003) 8 Chittagong U J of L 1–31.
58 Chapter XIA of the Supreme Court of Bangladesh (High Court Division) Rules 1973 pro-
vides for the general procedure in writ jurisdiction. Rule 10 in this chapter provides a detailed
procedure of suo motu rule.
59 (2015) 67 DLR (AD) 57.
60 ibid paras 71, 72, 329.
61 ibid para 95.
62 (2013) 18 BLC (AD) 116.
63 Al Jazeera (n 41) para 97.
Sixth, the Court further held that there had been no prescribed law that
enables the BTRC to ask or request a company owning any social media to
ban or take down any content that may malign the prestige of the authorities
of the government.64 The Court did not mention how it was filling the gap in
the law or on what basis it was undertaking the task of the legislative branch
in the sense of mandating the BTRC to do exactly that thing. Here, it argu-
ably assumed the role of the executive government and undertook a legislative
function.
Seventh, the concluding part of the judgment says that as ‘sons of the soil’
the Court itself was:
equally shocked and felt humiliated by discovering that the honour, dig-
nity, and prestige of our Head of the State, Government and that of
Army Chief were being maligned, tarnished, demeaned by none other
than... an international T.V. channel and some social media.65
As such, the Court passed the direction suo motu to BTRC so that it takes im-
mediate steps to ban the further transmission of the video. However, as these
emotional words suggest, the Court was not an unbiased arbiter in this case
and was seemingly promoting the political interest of the government. It lacked
the required judicial independence in passing the said suo motu directions.
Conclusion
These analyses of two constitutional judgments substantiate the argument that
the Supreme Court of Bangladesh has engaged in political policy-making in
the garb of its judicial review power. By doing this, it has abused the judicial
review power and acted in line with the political interest of the ruling party
as well as the personal interest of judges. Whenever the Court has veered into
the political terrain, the downside of judicial activism becomes apparent. The
strange judicial policy-making in these and other similar cases has turned the
Supreme Court into a hindrance to democracy,66 while its mandated constitu-
tional role is to support, sustain, and advance democracy in the country.
64 ibid para 96.

65 ibid para 96.
66 On this, see further MA Halim, ‘The 7th Amendment Judgment: Judicial Politics or Judicial
Activism’ (2013) 1(1) Counsel Law Journal 19.
7 Judicial review and the
separation of powers
Is one contingent upon the other?
Chowdhury Ishrak Ahmed Siddiky
Introduction
The Supreme Court of Bangladesh under article 102 of the Constitution can
exercise judicial constitutional review. The scope of judicial review, however,
is not explicitly elaborated in the Constitution. Although articles 7, 26, 44,
and 102 together form the authoritative base for judicial review, the Supreme
Court has mostly cited article 7, the constitutional supremacy clause, as a basis
of its judicial review power. Article 7 states that any law inconsistent with the
Constitution will be void, which, however, is silent as to who will determine
the consistency of any law with the Constitution and declare any unconstitu-
tional law void. The Supreme Court has unequivocally established that it, as
the guardian of the Constitution, has the authority to enforce article 7. This
chapter first explores the history of the constitutional origin of judicial review
in Bangladesh. It then evaluates whether the Supreme Court acts indepen-
dently as one of the coequal branches of the government when exercising
judicial review power as a tool for enforcing the separation of powers. The
chapter then goes on to analyse some important case laws to examine how the
Supreme Court has interpreted, applied, and expanded its power of judicial
review. In relevant places, a comparison with other jurisdictions will be made
to understand the trajectory and the future of judicial review in Bangladesh.
Judicial review in Bangladesh

The Constitution of Bangladesh was adopted on 4 November 1972 and came
into efect on 16 December 1972.1 The core fundamental principles of the Con-
stitution were secularism, democracy, socialism, and nationalism, which have
been amended numerous times by various governments leading to certain pro-
visions of the Constitution being contradictory.2 Judicial review is a manifesta-
tion as well as an integral part of democracy, one of the four fundamental cores.
1 Constitution of the People’s Republic of Bangladesh (hereafter “Constitution”).

2 For example, Islam is the state religion of Bangladesh while the enjoyment of other religions is
also guaranteed. See art. 2A of the Constitution.
DOI: 10.4324/9781003276814-9
Judicial review and the separation of powers 113
Article 102 of the Constitution has provided for judicial review, without using
the nomenclature though. In addition, articles 7, 26, and 44 provide the basis,
rationale, and scope of the judicial review power. These provisions, which, re-
spectively, provide for constitutional supremacy, a bar on parliament’s power to
make law inconsistent with fundamental rights, and the right to judicially enforce
fundamental rights, outline the substantive aspect of the judicial review power,
while article 102 largely provides the procedural aspect.3
In Bangladesh, judicial review is undertaken if any law is inconsistent with
the fundamental rights or any other provisions of the Constitution. Executive
actions including delegated legislation and judicial decisions (against which
no appeals are available) are amendable to judicial reviewable on the ground
of their illegality.4 Since 1989, in the aftermath of the 8th Amendment Case,
constitutional amendments are also judicially reviewable.5
Judicial review power under article 102 is the original jurisdiction of the
High Court Division of the Supreme Court, from whose decisions an appeal
lies to the Appellate Division.6 Although articles 7, 26, and 44 together pro-
vide the basis of judicial review, the Supreme Court has mostly cited article 7,
the constitutional supremacy clause, as the basis. Article 7 states that any law
inconsistent with the Constitution will be void, which, however, is silent as to
who will determine the inconsistency of any law with the Constitution. The
Court in several cases has showcased this clause as a source of its authority to
strike down any law if found inconsistent with the Constitution and stated that
it holds the ultimate authority to determine the compatibility of any law with
the Constitution.7
3 Article 7, the constitutional supremacy clause, states that the Constitution “is, as the solemn
expression of the will of the people, the supreme law of the Republic” and if any other law is
inconsistent with the Constitution that other law shall be void. Article 26(1), on the other
hand, states that all existing laws inconsistent with fundamental rights “shall, to the extent of
such inconsistency, become void”.
4 See Mahmudul Islam, Constitutional Law of Bangladesh (Mullick Brothers 1995) 78.
5 ibid 79.
6 Article 102(1) of the Constitution states: “The High Court Division on the application of any
person aggrieved, may give such directions or orders to any person or authority, including any
person performing any function in connection with the afairs of the Republic, as may be ap-
propriate for the enforcement of any fundamental rights conferred by Part III of this Constitu-
tion”. Article 102(a)(ii) states: “The High Court Division may, if satisfied that no other equally
efcacious remedy is provided by law – (a) on the application of person aggrieved, make an
order – ii) declaring that any act done or proceeding taken by a person performing functions
in connection with the afairs of the Republic or of a local authority, has been done or taken
without lawful authority and is of no legal efect”.
7 See Abdul Mannan Khan v Bangladesh (2012) 64 DLR (AD) 169, 234. See, however, Kawsar
Ahmed, ‘The Supreme Court’s Power of Judicial Review in Bangladesh: A Critical Evaluation’
(paper presented at the seminar hosted by BILIA to celebrate the 40th anniversary of the Con-
stitution of Bangladesh, 12 October 2012) (arguing that the Supreme Court has not explained
how its judicial review power under article 102 extends to giving remedies under article 7 of the
Constitution “when Article 102 itself provides for remedy”. Ahmed seems to overlook that the
remedy under article 7 (to declare any law unconstitutional) is also embedded in article 102(2).
114 Chowdhury Ishrak Ahmed Siddiky
The framers of the Constitution have also been silent on this matter. Upon
a reading of the proceedings of the Constituent Assembly, it appears that the
framers did not envisage the use of article 102 for judicial review of con-
stitutional amendments. In his speech before the Constituent Assembly on
30 October 1972, Dr Kamal Hossain, chairman of the Constitution Drafting
Committee opined that “the way we drafted Article 102, if any authority or
person – who exercises governmental authority does anything beyond juris-
diction and anyone sufers injury for that reason, the High Court may issue
direction to the concerned authority or person if the aggrieved person makes
a such application”.8
It is important to note that the use of article 102 by the Supreme Court to
invalidate and strike down constitutional amendments was not envisaged by
the framers. The framers were to some extent against judicial review of consti-
tutional amendments.9
Separation of powers and the judiciary

The separation of the judiciary from the executive is one of the major pillars
of any democratic constitution. In Idrisur Rahman v Bangladesh (2009), the
Court observed that “so long the judiciary remains truly distinct from both
the legislature and the executive the general power of the people can never be
endangered from any quarters”.10 The principle of separation of the judiciary
has been enshrined in article 22 of the Constitution which states that “the
State shall ensure the separation of judiciary from the executive organs of the
state”.11 Further, article 94(4) obligates the chief justice and the other justices
of the Supreme Court to act independently.12
Although the original Constitution had cast a duty on the state to separate
the judiciary from the executive, no steps were taken by the state to sepa-
rate the judiciary from the executive organ until 2007. The lower crimi-
nal judiciary was separated from the executive on 1 November 2007 by the
then caretaker government in compliance with the direction of the Appellate
Division of the Supreme Court in Secretary, Ministry of Finance v Masdar
Hossain.13
8 See Kawser Ahmed (ed), Proceedings of the Constituent Assembly of Bangladesh: Debates on
the Making of the Constitution, vol 1 (Pencil Publications 2021) 378 (trans. by Kawsar
Ahmed).
9 It can be argued that the framers did only anticipate judicial review power to protect the
fundamental rights of the people in general and to scrutinise the legality of administrative ac-
tions/inactions and Acts of parliament.
10 Idrisur Rahman v Bangladesh (2009) 61 DLR (HCD) 523.
11 See art. 22 of the Constitution.
12 See art. 94(4) of the Constitution.
13 (2000) 52 DLR (AD) 82 (judgment of 2 Dec 1999).
In Masdar Hossain, the Court was of the opinion that the provisions of the
independence of the judiciary afrmed in articles 94(4) and 116A are the “ba-
sic pillars of the Constitution which could not be abridged, curtailed or dimin-
ished in any manner”.14 In that case, the independence of the lower judiciary
was considered the essential condition of judicial independence as a whole.15
The decision, emanating from a judicial review proceeding, has, therefore, con-
tributed to the rule of law by strengthening the independence of the judiciary.16
Although the Constitution empowered the Supreme Court to control the
lower judiciary and despite the judiciary having been separated from the ex-
ecutive, the Supreme Court has not yet gained efective control over the sub-
ordinate judiciary. The problem remains because articles 115 and 116 of the
Constitution have created a schism in the meaningful separation and independ-
ence of the judiciary.17 These two articles have empowered the president to ap-
point the judges and judicial magistrates of the subordinate judiciary and to deal
with the posting and promotion of judicial ofcers in consultation with the Su-
preme Court. These two articles serve as leverage for the executive to interfere
with the functioning of the lower judiciary because the president acts upon the
recommendation of the prime minister under article 48(3) of the Constitution.
In Idrisur Rahman, the Court declared the Supreme Judicial Commission Or-
dinance 2008 unconstitutional on the ground that the ordinance breached the con-
stitutional principle of judicial independence by including majority members in the
Supreme Judicial Commission from outside the judiciary.18 This case also resulted in
the amendment of article 95(1) of the Constitution, which now provides that the Su-
preme Court judges shall be appointed “after consultation with the Chief Justice”.19
The Supreme Court, however, showed its true mettle in upholding the
separation of powers in Asaduzzman Siddiqui v Bangladesh (2014), which
challenged the 16th Amendment to the Constitution.20 The 16th Amendment
empowered the parliament to remove judges of the Supreme Court by tak-
ing the power of removal of judges away from the Supreme Judicial Council
headed by the chief justice.21 It was argued that the doctrine of basic structure
14 ibid para 57.

15 ibid.
16 On the judicial independence aspect, see further Chapter 5 in this volume.
17 Article 116 was substituted by the Constitution (Fifteenth Amendment) Act 2011. Through
the 15th Amendment, the executive formalised the mechanism to interfere with the lower
judiciary.
18 See Idrisur Rahman (n 10).
19 See art. 95(1) of the Constitution.
20 Bangladesh v Asaduzzman Siddiqui (2014) 62 DLR (AD) 298.
21 The president has this removal power upon a resolution of Parliament to remove any judge(s).
On an appreciative account of the decision See Po Jen Yap and Rehan Abeyratne, ‘Judicial
Self-Dealing and Unconstitutional Constitutional Amendment in South Asia’ (2021) 19 Int’l
J of Con L 127.
is a widely used tool to test the validity of any constitutional amendment.

By relying on articles 7, 7B, and 22 of the Constitution, the Court held that
the 16th Amendment would lead to legislative intervention in the judiciary,
thereby destroying the “basic structure” features of judicial independence and
separation of powers.
Although there is an argument that the parliamentary removal system being
part of the original constitutional structure, the 16th Amendment restoring
an original provision would be beyond judicial review, it is important to note
that articles 22 and 94(4) ensure the separation of power of the courts from
the executive. The majority judges in the High Court Division in Siddiqui
(2014) rightly opined that the Amendment created a public perception that
the judiciary is not independent, which is a direct blow to the separation of
power concept.22
The role of the Court in Siddiqui was also noteworthy as the Court pro-
tected judicial independence and the separation of power by invalidating the
16th Amendment to the Constitution. Although the role of the Court has
been criticised as “an afront to the separation of powers”, because it “lacks the
power to invalidate the original provision of the Constitution”,23 it is impor-
tant to note that the Constitution cannot be a static document that cannot be
changed even despite the change in circumstances.24 The Court had no other
option but to intervene as the failure of the electoral process in Bangladesh has
resulted in a subservient parliament that does not reflect the true aspirations of
the people. As a result, keeping the power to remove the judges at the hands
of parliament would have resulted in the judiciary being under the thumb of
the executive, which would have had serious implications on the independence
of the judiciary.
Although the Court has always tried to protect the independence of the
judiciary, it has at times intervened in cases which fall outside the scope of
its jurisdiction. This has resulted in the breach of the separation of power by
the judiciary itself. For example, in Hussain Mohammad Ershad v Zahedul Is-
lam Khan (2002), the Court, within weeks before the national election, held
that the conviction on corruption charges and the sentence of imprisonment
exceeding three years disqualified Hussain Mohammad Ershad from partici-
pation in the parliamentary election.25 However, it is important to note that
22 The full text of the High Court Division judgment is available at: <www.supremecourt.gov.
bd/resources/documents/783957_WP9989of2014_Final.pdf.>
23 Ridwanul Hoque and Sharowat Sharmin, ‘Developments in Bangladeshi Constitutional Law’
(2016) Global Review of Constitutional Law (I.CONnect-Clough Centre, Boston College
2017) 17. See, for a full critique, Ridwanul Hoque, ‘Can the Court Invalidate an Original
Provision of the Constitution’ (2016) 2(1) U of Asia Pacific J of Law and Policy 14.
24 Although there are critiques who point out that such amendments cannot come from the
Supreme Court, it can be argued that the Supreme Court is simply trying to fill up the void
left by a lack of legislative leadership in this regard.
25 (2002) 31 CLC (AD) 1316.
article 66(4) of the Constitution provides that any dispute regarding a can-
didate’s disqualification would be referred to the Election Commission. The
Court disregarded article 66(4) of the Constitution by stating that “once a
candidate had been convicted of a crime involving moral turpitude . . . , there
remains no dispute to be decided by the Election Commission and the politi-
cian would be disqualified automatically”.26
The invalidation of the 13th Amendment to the Constitution in the case
of Abdul Mannan Khan v Bangladesh was another controversial interference
which caused political turbulence in the country.27 The majority Court held
that “the 13th Amendment was unconstitutional as it allowed for an unelected
government to rule Bangladesh, thereby violating democracy, an unamend-
able basic feature of the constitution”.28 Justice Mia, a dissenting judge, held
that “elections held under the political government were tainted with manipu-
lation, rigging and hijacking, and multiple free and fair elections had been held
under the current Non-Party Caretaker Government System”.29
Although the Court has over the years been active in keeping the public
agencies accountable, it did not follow the same principle for private indi-
viduals or entities violating the Constitution. Hoque argues that “the Court’s
reluctance to apply fundamental rights horizontally, although there is some
measure of indirect horizontality, does not quite match with either the letter
or the spirit of Article 102(1) of the Constitution that makes fundamental
rights enforceable against any person”.30 This was found to be true in State
v Sukur Ali where the Court confirmed the death sentence of a minor boy
by reasoning that “it could not defy the language of the concerned special
statute that provided the mandatory death penalty for any person guilty of the
ofence”.31 This reasoning was clearly against the spirit of the Constitution.
Environmental issues are another area where the Court has shown its in-
clination to proactive adjudication. In a long list of cases, the Court has ac-
tively ensured the protection of the environment by giving guidelines and
even remedies such as directing the relevant government agency to act. For
example, recently the Court has declared rivers as a “living entity” to protect
them from encroachment.32 In this landmark judgment, the Court nominated
26 ibid. See also Begum Khaleda Zia v Bangladesh Election Commission (2019) 7 CLR (HCD) 8
where the former prime minister of Bangladesh was declared to be ineligible for elections in
2018 as she was convicted of an ofence.
27 (2012) 64 DLR (AD) 169.
28 ibid 171.
29 ibid.
30 Ridwanaul Hoque, ‘Constitutionalism and the Judiciary in Bangladesh’ in S Khilnani, V Ra-
ghavan, and A Thiruvengadam (eds), Comparative Constitutionalism in South Asia (Oxford
31 (2004) 9 BLC (HCD) 238.
32 Human Rights and Peace for Bangladesh (HRPB) v Bangladesh (2016) 4 CLR (HCD) 121.
See also Cemex Cement (Bangladesh) Ltd. v HRPB (2015) 12 ADC 455.
the National River Protection Commission (NRPC) as the legal guardian of

all waterways and directed other state agencies to fully assist the Commission.
In another case, the Court invalidated a contract given to a foreign com-
pany to construct a terminal in the Chittagong Port due to a lack of transpar-
ency.33 It also had once struck down a local government law that undermined
the Constitution34 and directed the setting up of special courts in the Chit-
tagong Hill Tracts to protect children and women.35 In all these cases, the
Court has proactively taken it upon itself to intervene, protect the rights of
citizens, or invalidate laws passed arbitrarily. However, these actions by the
Court can be construed as a violation of the separation of power principle
as they have gone beyond their remit. The Court has not been consistent
in all the cases involving corruption or cases with a mixture of politics. As
Hoque points out, “While the Court has shown a disproportionately active
engagement with cases concerning its independence, it has not for example
yet authoritatively established the jurisprudence of public law compensation
for gross constitutional breaches”.36
Judicial review of constitutional amendments has become a regular occur-
rence in Bangladesh. The 5th, 7th, 8th, 10th, 13th, 14th and 16th Amend-
ments were all challenged before the Supreme Court.37 Although it is claimed
that the judgments in all these cases were given on merit and that no questions
regarding the competency of the Court to use judicial review were raised, the
fact remains that the Court’s review of some constitutional amendments vio-
lated the separation of power.
Although Anwar Hossain Chowdhury acknowledged the inherent limita-
tions on the power of amendment, the Court made a distinction between the
constituent power of adopting a new constitution and the derivative power
of amending the constitution.38 Although in that case the Court was correct
in identifying certain basic provisions of the Constitution, questions remain
as to whether they have the jurisdiction to make the Constitution of a coun-
try unamendable or to amend the Constitution in the guise of reviewing a
constitutional amendment. It is important to consider that the Constitution
is the expression of the will of the people as envisaged by the framers of the
33 Engineer Mahmud-ul-Islam v Bangladesh (2003) 23 BLD (HCD) 80.

34 BLAST v Bangladesh (2008) 60 DLR (HCD) 234.
35 BLAST v Secretary, Ministry of Law, Justice and Parliamentary Afairs (2009) 61 DLR (HCD)
109.
36 Hoque (n 30) 324.
37 See Italian Marble Works Ltd v Bangladesh (2010) 62 DLR (AD) 70 (5th Amendment Case);
Siddique Ahmed v Bangladesh (2013) 33 BLD (AD) 129 (7th Amendment Case); Anwar
Hussain Chowdhury (n 38) (8th Amendment Case); Dr Ahmed Hussain v Bangladesh (1998)
18 BLD (AD) 184 (10th Amendment Case); Abdul Mannan Khan (n 27) (13th Amendment
Case); Farida Akhter v Bangladesh (2005) 57 DLR (AD) 201 (14th Amendment Case); and
Bangladesh v Asaduzzaman Siddiqui (2014) 62 DLR (AD) 298 (16th Amendment Case).
38 Anwar Hossain Chowdhury v Bangladesh (1989) BLD (AD) (Special) 1.
Constitution (by exercising “constituent power”) and that being the case, un-
elected judges have a very thin line to tread upon in deciding challenges to
constitutional amendments, a power that was not enshrined in the Constitu-
tion at the time of the founding.
Judicial review over the years

The concept of judicial review was adopted by the original Constitution via
article 102 as a vehicle for the enforcement of fundamental rights and the
scrutiny of administrative/executive actions. However, the Constitution did
not incorporate the concept of basic structure, which made the judicial review
of constitutional amendments (since 1989) complicated because the Court
could not decide what the Constitution’s basic structure features are. The con-
cept of judicial review of constitutional amendments in Bangladesh was first
endorsed by the Supreme Court in Anwar Hossain Chowdhury where the Ap-
pellate Division of the Supreme Court held that the power of judicial review
is conferred by article 102 of the Constitution, and it cannot be taken away or
curtailed even by a constitutional amendment.
Since Bangladesh’s independence, three remarkable expansions of the ju-
dicial review power have been through the judicial review of constitutional
amendments (JRCA), the adoption of the concept of public interest litigation
(PIL), and judicial review of private entities of public nature. These develop-
ments are briefly analysed next along with the traditional facets of judicial
review, that is, judicial review of administrative/executive decisions involving
the breaches of human rights and the principle of legality. Judicial review of
legislative acts and ordinances, another significant aspect of the judicial review
power as a tool for ensuring the separation of powers, has been kept out of the
scope of this chapter.39
Judicial Review of Constitutional Amendments (JRCA)
Anwar Hossain Chowdhury v Bangladesh (1989)40 was the beginning of a judi-

cial review of constitutional amendments in Bangladesh. One of the judges in
the case opined that while judicial review of laws passed by the parliament is
marked as a precursor of constitutional supremacy, judicial review of constitu-
tional amendments was to be seen with both reverence and suspicion.41 For Jus-
tice Kamal, if the judiciary, “the guardian of the Constitution, remains silent . . .
39 See also Italian Marble Works Ltd v Bangladesh (2010) 62 DLR (AD) 70 (5th Amendment
Case); Siddique Ahmed v Bangladesh (2013) 33 BLD (AD) 129 (7th Amendment Case);
Anwar Hussain Chowdhury (n 38) (8th Amendment Case) where the martial law orders/
ordinances were invalidated.
40 (1989) 41 DLR (AD) 165.
41 Justice Mustafa Kamal, Bangladesh Constitutions: Trends and Issues (Dhaka University 1994)
141.
it will make the constitution a plaything of the majority [party-ridden] par-

liament and will give birth to parliamentary autocracy”.42 This clearly shows
that the Supreme Court was not only careful to draw a line between the
parliament and the Court but also to reafrm its commitment to upholding
constitutionalism in its role as a guardian of the Constitution.
In Anwar Hossain Chowdhury,43 popularly known as the 8th Amendment
Case, the then military government difused the High Court Division into
seven diferent benches through martial law regulations and later amended
article 100 of the Constitution via the 8th Amendment to legalise those extra-
constitutional changes. The petitioners challenged the 8th Amendment and
argued that “the High Court Division’s plenary judicial power over the whole
Republic was part of the basic structure of the Constitution which was unal-
terable even by a constitutional amendment”.44 In its majority judgment, the
Appellate Division held that the parliament did not have unlimited amending
power and that certain provisions of the Constitution cannot be altered by the
parliament as they are considered the basic pillars of the Constitution.45 The
Court invalidated the 8th Amendment on the ground that the amendment
altered some unalterable basic structures/features of the Constitution. This
is how the concept of judicial review of constitutional amendments, or the
doctrine of basic structure, was adopted in Bangladesh.
Before this case, the concept of the basic structure doctrine was unheard
of in Bangladesh, although the argument of the unamendability of certain
constitutional provisions was already considered in an earlier case of M. Ab-
dul Huq v Fazlul Quader Chowdhury.46 The landmark judgment in Anwar
Hossain Chowdhury might not have been possible if not for the Indian case
of Kesavananda Bharati v State of Kerala (1973),47 upon which the Court
relied.48 Kesavananda Bharati, for the first time, established “in the com-
mon law world the doctrine of the inviolability of the basic structure of the
Constitution”.49 In Kesavananda, the Indian judges acted in furtherance of
their duty to ensure governance by the standards of the rule of law and were
acting to ensure that the fundamental features of the Indian Constitution were
42 ibid 142.
43 (1989) 41 DLR (AD) 165.
44 ibid 169.
45 ibid 174.
46 M Abdul Huq v Fazlul Quader Chowdhury (1963) 15 DLR (Dacca) 355 (upheld by the Su-
preme Court of Pakistan in the case of Muhammad Abdul Haque v Fazlul Quader Chowdhury
(1963) 10 DLR (SC) 84).
47 (1973) 4 SCC 225.
Scholars Publishing 2011) 325, who thinks that “but for this strong persuasive decision [in
Kesavananda] from a powerful neighbouring jurisdiction it would be extremely difcult, if
not impossible, for the Bangladesh Court to produce such a structurally radical decision”.
49 ibid 166.
not threatened. That decision, therefore, can be seen as the judicial enforce-
ment of the principle of separation of powers.
Relevantly, article 7(2) of the Constitution states that if “any other law” is
inconsistent with the Constitution then that “other law” shall be void to the
extent of the inconsistency. In Anwar Hossain Chowdhury, it was argued that
a constitutional amendment is not within the scope of “any other law” under
article 7 and, hence, not subject to judicial review. Later, in Kudrat-e-Elahi
Panir v Bangladesh,50 Justice Mustafa Kamal held that even if the Constitution
does not fall within the ambit of any other law referred to in article 7(2), a
constitutional amendment can be the subject of judicial review.51
In 2010, the Appellate Division in Khondker Delwar Hossain v Bangladesh
Italian Marble Works52 invalidated the 5th Amendment of 1979 for violating
the principle of constitutional supremacy. The 5th Amendment was done un-
der the military regime that changed a few important aspects of the Constitu-
tion, including making it subservient to the Martial Law Proclamation. The
Court held that “making the Constitution subordinate and subservient to the
Martial Law Proclamations, Regulations and Orders are absolutely illegal, void
and non-est in the eye of law . . . so any attempt to legalise this illegality in any
manner or method and by any Authority or Institution, how high soever, is
also void and non-est and remains so forever”.53
The 16th Amendment of the Constitution54 was on the removal of the Su-
preme Judicial Council, which had the power to impeach judges, and author-
ised the parliament instead to impeach judges. This amendment was declared
illegal and unconstitutional by the High Court Division,55 and the decision
was confirmed and upheld by the Appellate decision in 2018.56 The decision is
currently under review at the Appellate Division, with the government giving
ninety-four arguments in favour of the amendment.
It can be observed that, when reviewing constitutional amendments
throughout the years, the judiciary has sometimes maintained the separation
of powers while at other times has not quite adhered to the principle.
Public Interest Litigation (PIL)
Public interest litigation (PIL) has been a valuable tool for the court to come
up with landmark judgments for the protection of the rights of citizens, the
environment, and others violated through various administrative decisions. In
50 (1992) 44 DLR (AD) 319.

51 ibid 341.
52 (2010) 62 DLR (AD) 298.
53 ibid.
54 The Constitution (Sixteenth Amendment) Act 2014 (Act No XIII of 2014).
55 See Siddiqui (n 22). The full text of the High Court Division judgment is available at: <www.
supremecourt.gov.bd/resources/documents/783957_WP9989of2014_Final.pdf.>
56 (2017) 14 ADC 1.
Dr Mohiuddin Farooque v Bangladesh (1997), the Supreme Court extended

the scope of writ jurisdiction through which any organisation or individual,
without any personal interest in a particular case, could challenge the validity
of an administrative action/inaction afecting the public interest.57 PIL has
subsequently been used on many occasions to challenge laws and constitu-
tional amendments.
Although the High Court Division in this case summarily dismissed Dr Mo-
hiuddin Farooque’s challenge because he was not an aggrieved person under
the ambit of article 102 of the Constitution and there was not an explicit right
to a healthy environment under articles 31 and 31, the Appellate Division held
that:
Any person, other than an ofcious intervener or a wayfarer without any

interest in the cause beyond the interest of the general people of the
country, is qualified to be person aggrieved and can maintain an action
for judicial redress of public injury arising from a breach of some public
duty or for violation of some provision of the Constitution or the law
and seek enforcement of such public duty and observance of such con-
stitutional or legal provisions.58
This view of the Court was further strengthened in Mahmudul Islam v

Bangladesh (2003), where the Court took the view that a citizen could seek
a court’s intervention for the enforcement of the rights and interests of citi-
zens.59 The Supreme Court held that as the guardian of the Constitution “it
[had an] obligation to correct and remedy any wrongdoing by abuse/misuse
of ofcial power or any violation of the Constitution”.60
PIL, thus, has been a vehicle for the Supreme Court to intervene in cases
where there is a violation of the Constitution. The decisions given out by the
Supreme Court have forced the executive to enact laws or to correct any wrongs
towards the citizens of the country. The Supreme Court has been proactive in
various fields such as environmental protection61 and access to justice.62
As a result, PIL has played an important role in the separation of
power as the Court has tried to protect its turf by passing judgments
57 Mohiuddin Farooque v Bangladesh (1997) 49 DLR (AD) 1.

58 ibid.
59 Mahmudul Islam v Bangladesh (2003) 55 DLR (HCD) 45.
60 ibid.
61 In a landmark decision in Human Rights and Peace for Bangladesh v Secretary, Ministry of
Shipping (Civil Petition for Leave to Appeal No. 3039 of 2019), the Appellate Division de-
clared all rivers in Bangladesh as a legal entity and assigned the National River Protection
Commission (NRPC) as the legal guardian to act as their parents in protecting the rivers,
waterbodies, and canals.
62 Dr Mohiuddin Farooque v Bangladesh (2006) 3 ADC 529.
highlighting the supremacy of the Court in upholding the values of the

Constitution.63
Judicial review of public functions of private entities
The Supreme Court has also recently expanded the scope of judicial review in
matters of actions of private bodies which are of public nature. In Md. Abdul
Hakim v Bangladesh, the Court dealt with whether an order issued by an osten-
sibly private authority could be reviewed in its writ jurisdiction.64 In reaching its
judgment in Hakim, the Court was satisfied that the chairman of the managing
committee of a non-governmental madrasah in discharging his powers and du-
ties engaged efectively in regulating the services of the teachers, which was a
function of public nature.65 By doing so the chairman remains a repository of
power that otherwise is the preserve of the state under articles 15(a) and 17 of
the Constitution to ensure and provide education, the Court reasoned.66
The decision in Abdul Hakim has set a precedent against the long-held
view that any order or decision of a private body cannot be challenged under
article 102 of the Constitution. However, what the Court carefully considered
is whether the power of a chairman of the managing committee of a non-
governmental madrasah is woven into a system of governmental control. The
answer was in the afrmative and, hence, the Court’s invocation of its judicial
review power. Importantly, the Court relied on several English cases, includ-
ing the famous Datafin PLC,67 where private functions of public nature were
found reviewable.68 By citing Datafin PLC, the Court pointed to the need to
make a broad assessment of all circumstances of a case and, in particular, the
“extent to which the powers can be said to be woven into a system of govern-
mental control”.69
Judicial review and the enforcement of human rights
The Supreme Court has over the years tried to protect the human rights of
the citizens of the country through judicial review. It has intervened through
63 Providing a detailed account of PILs and their achievements is beyond the scope of this
chapter. The literature is also vast on PIL in Bangladesh. But see Naim Ahmed, Public Inter-
est Litigation in Bangladesh: Constitutional Issues and Remedies (Bangladesh Legal Aid and
Services Trust 1999); Ridwanul Hoque, ‘Taking Justice Seriously: Judicial Public Interest and
Constitutional Activism in Bangladesh’ (2006) 15(4) Contemporary South Asia 399; and Awal
Hossain Mollah, ‘Judicial Activism and Human Rights in Bangladesh: A Critique’ (2014)
56(6) Int’l J of Law and Management 475.
64 (2014) 34 BLD (HCD) 129.
65 ibid 135.
66 ibid 136.
67 R v Panel on Takeovers and Mergers, exparte Datafin PLC (1987) QB 815.
68 The London Metal Exchange ex p. Albatros Warehousing BV (1998) EWHC Admin 903.
69 Md Abdul Hakim v Bangladesh (2014) 34 BLD (HCD) 129.
judicial review to uphold the values of the Constitution. It has, for example,
come down heavily on arbitrary arrest, detention, and torture in police cus-
tody. In Bangladesh v Bangladesh Legal Aid and Services Trust (BLAST),70 the
High Court Division issued a set of guidelines to be followed by magistrates
and the police concerning arrests without a warrant, remand to and deten-
tion in police custody, and interrogation of suspects.71 The guidelines, finally
endorsed by the Appellate Division of the Supreme Court,72 now require the
police to disclose identity when making an arrest, prepare a memorandum of
arrest, inform the relatives or friends of the arrest, and take the arrestee to a
doctor in the event of any injury.73 The Supreme Court, through the passing
of this landmark judgment, not only upheld the rule of law but was able to
protect the fundamental rights of the citizens of the country and ensured that
due process is maintained by the law enforcement agencies.
The Supreme Court also played a pioneering role in protecting the rights
of women by setting out guidelines about sexual harassment of women in BN-
WLA v Bangladesh (2011)74 and Salma Ali v Bangladesh (2009).75 Although
several laws over the years were enacted to curb violence against women, there
has not been any specific law dealing with the sexual harassment of women in
workplaces. As a result, the Supreme Court by its intervention in these cases
was able to fill in the legislative void. These landmark judgments not only
defined the concept of sexual harassment but also provided guidelines for pro-
tecting women from sexual harassment.
As a result, the Supreme Court has tried to play its part in protecting the
human rights of citizens through its judgments and directions in various cases.
Although critics point out that it has abused its position by not respecting the
separation of power concept, the fact remains it has simply tried to uphold the
spirit of the Constitution.
The principle of legality
Article 102(2) empowers the Court to exercise judicial review to enforce the
principle of legality. Although article 102(2) does not use this nomenclature, it
allows the Court to issue remedies both nullifying any executive actions done
without any legal backing and mandating the executive branch to do some-
thing that it is required by law to do. The principle of legality requires that
government decisions must have a specific legal authority. As Dyzenhaus et
al. said, the principle connotes that “broadly expressed discretions are subject

71 ibid.
72 Bangladesh v BLAST (2017) 69 DLR (AD) 63. See also A Faruque and Fazlul Bari, ‘Arbitrary
Arrest and Detention in Bangladesh’ (2019) 19(2) Australian J of Asian Law 315.
74 (2011) 31 BLD (HCD) 324.
75 (2009) 29 BLD (HCD) 415.
to the fundamental values, including values expressive of human rights, of

the common law” and is “properly located within a particular conception of
democratic legal culture, the culture of justification, in which decision-makers
are obliged to justify their decisions”.76
The Court has frequently applied this principle to hold the executive ac-
countable. In Faisal Mahbub v Bangladesh (1992), for example, the validity of
preventive detention was challenged as each and every citizen has an inalien-
able right to be treated in accordance with the law.77 The Court held that the
mere citation of the relevant statute in the detention order was not sufcient
ground to preventively detain anyone.78 The Court would have to consider
whether the grounds of detention are justified and supported by evidence. In
Nasrin Kader Siddique v Bangladesh (1992), the Court demanded that mate-
rials supporting “the commitment [of the detainee] would have to be placed
before the court for its satisfaction as to whether the irregularities in it if any
could be detected”.79
The principle of natural justice is another expression of the principle of
legality and is one of the key elements of the rule of law.80 Natural justice is
a common law concept and represents fairness, reasonableness, equity, and
equality. Article 102 allows the Supreme Court to intervene in any case of
violation of natural justice. In Mohiuddin v Dhaka University (1983),81 it was
held that where a petitioner’s licence was cancelled without him being given a
fair opportunity to defend against the allegations made against him, the action
of the authorities was a violation of article 27 of the Constitution, which is the
principle of equality before the law.82
Conclusion
The Supreme Court of Bangladesh has evolved greatly over the last 50 years
in its approach to judicial review in matters it considers pertinent to inter-
vene. However, its intervention has been chequered and sometimes outside
its jurisdiction.83 During the martial law imposed in 1975, the Supreme Court
left its role as the guardian of the Constitution by allowing the government
76 David Dyzenhaus, Murray Hunt, and Michael Taggart, ‘The Principle of Legality in Admin-
istrative Law: Internationalisation as Constitutionalisation’ (2001) 1 Oxford Univ Common-
wealth L J 6.
77 Faisal Mahbub v Bangladesh (1992) 21 CLC (HCD) (online).
78 ibid.
79 Nasrin Kader Siddiqui v Bangladesh (1992) 21 CLC (AD) (online).
80 On this concept from a Bangladesh perspective, see Abdullah al Faruque, Natural Justice:
From Principles to Practice (Palal Prokashoni 2013).
81 (1993) 45 DLR (HCD) 292.
82 See also Abdul Jalil v BSFC (1991) 43 DLR (HCD) 474; Zakir Ahmad v University of Dacca
PLD 1965 122; and Bangladesh v Professor Golam Azam (1993) 45 DLR (AD) 423.
83 See, for example, Abdul Mannan Bhuiyan v State (2008) 60 DLR (AD) 49, where the Court
based on a newspaper report suo motu took some actions which violated the clear separation of
at that time to forcibly acquire the property of the citizens and suspend the
right of judicial review. When this was challenged in Halima Khatun v Bang-
ladesh (1978),84 the Supreme Court held that it had no other option but to
give efect to martial law regulations and proclamations.85 The Court stated
that “if the laws which this court administers does, therefore, amount to what
is known as harsh or unjust legislation, the court will still have to administer
it”.86 In State v Haji Joynal Abedin,87 the Court stated that “the Constitution
had been reduced to a position subordinate to the 1975 Martial Law Procla-
mation as clause (g) of the said Proclamation clearly states that no court shall
call into question any action taken by or under any Martial Law Regulation”.
However, in this decision, it was not considered by the Court that the ofence
committed by the accused petitioner was committed before the Martial Law
Proclamation.
The intervention of the Court in some of the cases discussed has shown
the Court’s tendency to interfere in areas within the jurisdiction of the leg-
islature and the executive. There have also been criticisms in the parliament
regarding the judiciary that it is not respecting the separation of power as it
regularly tries to legislate from the bench. The BWNLA case, and the 8th and
the 13th Amendment Cases, discussed previously, are good examples of such
interference.
The judiciary has over the last fifty years been able to protect its turf but
has otherwise failed to act when needed. It has also at times not abided by the
principle of separation of powers while interfering in cases through judicial
review. The country has so far seen two martial law regimes and four states of
emergencies and whenever constitutional amendments have been passed dur-
ing those times, the Court has consciously tried to stay above the fray despite
the desecration of the Constitution. Moreover, they only acted when the crisis
has abated.88 As a result, it can be concluded that while the Court has used
judicial review and the separation of powers to protect its interests, it became
the handmaiden of the government when political issues arose.
powers between the organs and risked setting a precedent which had the potential to politicise
the judiciary.
84 (1978) 30 DLR (SC) (1978) 207.
85 ibid 220.
86 ibid 220.
87 (1978) 30 DLR (HCD) 371.
88 See cases cited in note 39. In all these cases, the court intervened after many years after the
actual time of parliamentary or government action. This aspect substantiates the notion that
the Court only acts when the crisis has abated.
Part III
Political parties, executive

authority, and parliament
under the constitutional
scheme
8 Constituting limits and
accountability of the executive
power in Bangladesh
Md Lokman Hussain
Introduction
In the last few centuries, states transformed from omnipotent monarchical
power to modern constitutional states. While the craving for written constitu-
tions was not a Western uniqueness, argues Colley, global constitutions as a
political technology transformed from the function of empowering the citi-
zens to that of limiting the power of the rulers.1 Comprehending constitu-
tionalism as an antidote to the abuse of public power is central to the idea of
constitutionalism.2 According to Sajó and Uitz, constitutionalism stands for “a
set of interrelated concepts, principles, and practices of organizing and thereby
limiting government power in order to prevent despotism.”3 For modern po-
litical theories, the idea of limiting the government goes back to the works of
Thomas Hobbes (1588–1679) and John Locke (1632–1704). Other scholars
of constitutionalism also emphasised the limiting function of constitutions.4
In explaining the origin of political order, Fukuyama argued that modern
democratic political order includes three sets of institutions: the government
(for the execution of power), the judiciary, and parliament (the latter two for
controlling that power).5 In this sense, a constitution works as a design for
the powers in the state, through designing, and legitimising the exercise of,
the power. Two connected features are common to these understandings of
constitutionalism. One is the function of the constitution as a limit on powers
or as a check against abuse of powers, and the other is the constitution’s role
1 Linda Colley, The Gun, the Ship, and the Pen: Warfare, Constitutions, and the Making of the
Modern World (Liveright Publishing Corporation 2021).
2 Charles H McIlwain, Constitutionalism: Ancient and Modern (revised edn, Liberty Fund
2007).
3 András Sajó and Renáta Uitz, The Constitution of Freedom: An Introduction to Legal Constitu-
tionalism (Oxford University Press 2017) 13.
4 See, for example, McIlwain (n 3); Scott Gordon, Controlling the State: Constitutionalism from
Ancient Athens to Today (Harvard University Press 2002).
5 Francis Fukuyama, Origins of Political Order: From Prehuman Times to the French Revolution
(1st edn, Farrar, Straus and Giroux 2012).
DOI: 10.4324/9781003276814-11
130 Md Lokman Hussain
as an instrument or design in clear contrast to the consecration of laws and the

source of authority.
In the previously mentioned quotation of Tajuddin Ahmad, the prime
minister of the provisional government of Bangladesh during the 1971
liberation war, one can identify the instrumental understanding of consti-
tutionalism in the Bangladesh context, which recognises that, due to the
fallibility of human beings, a constitution is no better than the understand-
ing of the human individuals making it. This understanding, contrary to
the popular trend of consecrating the Bangladeshi Constitution as a docu-
ment, was also highlighted by Mahmudul Islam as he identified both the
Constitution’s instrumental role6 and its function of limiting the power of
government.7
During the making of Bangladesh’s Constitution in 1972, a quote was
reiterated in the Constituent Assembly, which was that the constitution
is only a framework or a skeleton, its flesh and blood are provided by the
actual processes of politics. This metaphor compares the constitution with
the human body. The reference to blood and flesh in the saying perhaps
indicates the character of the organic growth of the national constitution.
Ironically, however, political parties in Bangladesh have largely failed to
allow the Constitution of the nation to grow as intended by the founding
fathers.8
Further, attempts to constitute and design limits on the executive power
in Bangladesh were flawed since the days of the Constituent Assembly.
The constitutional design and the ability of the Constitution as a check
on the executive power have since deteriorated further. The Constitution
has largely failed to be the arbiter between the freedom of the individuals
and the powers of the state. The main reason for such a failing is probably
that the design of powers of the executive was never theoretically sound
given the local sociopolitical contexts. Moreover, the devised constitutional
checks on the executive have not ever been practically implemented with
conviction by the ruling and the opposition parties. It seems that the Bang-
ladeshi Constitution, rather contradictorily, focuses on the limits of indi-
vidual freedoms,9 while shying away from strongly articulating limits on the
executive power.
6 Mahmudul Islam, Constitutional Law of Bangladesh (2nd edn, reprint, Mullick Brothers 2003)
ix.
7 ibid 1. The instrumental understanding of constitution diferentiates between constitution and
constitutionalism. This chapter can be understood as more a discussion about constitutionalism
than constitutional law.
8 On the role of political parties generally, see Chapters 9 and 10 in this volume.
9 Most of the fundamental rights provisions are subject to law, public policy, and other vague
grounds (see, for example, the rights in arts. 36–41). However, see art. 26, which says that laws
inconsistent with fundamental rights are void.
Constituting limits and accountability of the executive power 131
Separation of power as a method for limiting the state

The rationale for constitutionalism lies in the need for both empowering the
state and preventing the abuse of its power. The theory of separation/balance
of powers is, therefore, used to devise constitutional limits on state powers.
Two familiar models of democratic governments follow diferent designs of
the separation of powers. They are a presidential form of government (the
United States of America is a famous example) and the system of parliamen-
tary democracy (the United Kingdom, the so-called Westminster model, is the
classic and a much-replicated example of this model). However, the diferences
in constitutional architecture in the UK and the USA have one common func-
tion of constitutionalism – limit the executive.
The theory of separation of power is attributed to the work of Montesquieu,
The Spirit of Laws,10 where the core logic was that unless the powers of the
organs of the state are separated, the liberty of the individuals is in peril. He
suggests that there should be a sophisticated tension among the three state
organs for ensuring the liberty of the individuals. Later, during the framing of
the American Constitution, Madison argued for the separation of powers, par-
ticularly in Federalist Paper no. 48. To avoid confusion about separation as total
separation, he argued that the three state powers should not be that much sepa-
rate that they cannot check each other.11 In his words, “unless these depart-
ments [executive, legislature, and judiciary] be so far connected and blended as
to give to each a constitutional control over the others, the degree of separation
which the maxim requires, as essential to a free government, can never in prac-
tice be duly maintained.”12 The US judiciary reminds us of this tension, observ-
ing that the framers of its constitution recognised the necessity of institutional
design to safeguard liberty from the abuse of power.13 It resolved this necessity
in two ways: by making a federal structure of the government and by dividing
the federal power of the government into three defined categories of legisla-
tive, executive, and judicial power.14 The concern that underlies Madison’s pro-
posal for separation of power is the problem of governmental tyranny which is
“common to all forms of government.”15 Unless there is an efective separation
of powers, any system of government, “will degenerate into tyranny.”16 Thus,
separation of powers is not only a democratic value in itself, it is also a remedy
for the perennial problem of tyranny in any form of government.
10 Montesquieu, Charles de Secondat, The Spirit of Laws (trans. by Thomas Nugent, Hafner
Pub. Co. 1949).
11 Alexander Hamilton, James Madison, and John Jay, The Federalist Papers (Oxford University
Press 2008).
12 ibid 245.
13 Seila Law LLC v Consumer Financial Protection Bureau, 591 U.S. 2020, 21.
14 ibid.
15 George W Carey, ‘Separation of Powers and the Madisonian Model: A Reply to the Critics’
(1978) 72 The American Poll Science Rev 151.
16 ibid.
The separation of powers does not deny the need for the executive to be
strong enough to execute the laws. This often creates confusion. The Lock-
ean formulation of the separation of powers is identified to be supporting the
absolute power of the executive branch. Unless one endorses the supremacy
of the constitution over ordinary laws, or at least identifies the diference be-
tween them, one may be tempted to consider Locke to be either supporting
extra-legal prerogatives of the executive or considering the executive subject
to the law.17 Locke’s executive prerogatives are both legitimated by the consti-
tution and subject to it.18 However, the Lockean prerogative for the executive
has another pragmatic necessity to fulfill: to “deal with unforeseen issues that
arise, especially those which cannot be anticipated by the legislative branch.”19
While, in the US context, the judiciary developed tools for testing the consti-
tutionality of such an exercise of executive power, in Bangladesh, this power
is not usually tested routinely. For example, an unofcial emergency declared
during the COVID-19 pandemic in 2020 was not judicially tested.20 However,
the ordinance-making power of the president under article 93 of the Constitu-
tion is a more appropriate legal tool in the hands of the executive for dealing
with unforeseen issues. In the case of COVID-19, Bangladesh did not involve
this ordinance-making power. The country did not use the regular law-making
power of the parliament either. Rather, it relied on an inappropriate executive
tool of declaring public holidays by broadly citing the Rules of Business.21
Bangladesh’s model is neither American nor British

It is important to note that constitutionalism is a global phenomenon in that
the culture of constitutionalism is influenced by the practices of other countries,
most of which that have written constitutions. The diference may be in the
design of power and the content of rules. For Bangladesh, constitution-making
was influenced by the then international politics. For example, the attempt to in-
corporate the contradictory ideals of democracy and socialism at the same time
was arguably a reflection of the Cold War international politics of the time.22
From the point of view of the constitutional design of Bangladesh, I
would argue that Bangladesh did not follow either of these two models of
17 Lee Ward, ‘Locke on Executive Power and Liberal Constitutionalism’ (2005) 38 Canadian J
of Poll Science 719.
18 ibid 721.
19 Joshua L Friedman, ‘Emergency Powers of the Executive: The President’s Authority When All
Hell Breaks Loose’ (2012) 25 J of Law and Health 265.
20 Ridwanul Hoque, ‘Bangladesh’s Unofcial Emergency: Managing the COVID-19 Crisis By
Notifications’ (Verfassungsblog, 6 May 2020).
21 The Rules of Business 1996, framed by the president under art. 55(6) of the Constitution.
22 See Ridwanul Hoque, ‘The Founding and Making of Bangladesh’s Constitution’ in Kevin Y
L Tan and Ridwanul Hoque (eds), Constitutional Foundings in South Asia (Hart Publishing
2021) 91–119.
constitutionalism in controlling the executive power. It missed the focus on

controlling the executive power even after the horrible experience of the Pa-
kistan era.23 Anti-colonial narratives that tempt us to identify this global cul-
ture of constitutionalism as part of neo-imperial or neo-colonial hegemony
may recognise that measuring accountability and imposing limits on executive
power based on the US or UK models is not more hegemonic than the idea
of constitutionalism itself. Moreover, Bangladesh did not manifestly denounce
those models for the sake of decolonisation. Rather, during the constitution
drafting, it heavily relied on the constitutional experience of these two and
other countries. The democratic values, in particular, were borrowed from
others and transplanted into the national Constitution.24 Thus, it is legitimate
to measure the constitutional design of executive power in Bangladesh in the
light of theories and models from the UK and the USA.
Bangladesh incorporated into Constitution parliamentary democracy in
1972. It may seem that it is difcult to ensure separation of powers in a West-
minster form of government. However, there are viable mechanisms of checks
and balances in that system. In Britain, members of the parliament can vote
against the Bills proposed by the government party and, due to parliamentary
supremacy, the executive remains checked by the legislature. Moreover, the
balance of power is ensured through the political freedom of members of
parliament. A political party can restrict the power of the members solely in
the case of a confidence vote. Although Bangladesh supposedly replicated the
British model of parliamentary government, mostly because of the colonial
legacy, the form lacks nearly all of the features mentioned.25 In Bangladesh, the
three powers are so close that they cannot check each other.
It is obvious that the Westminster model of separation of powers, which
Bangladesh aimed to transplant into its system, is not “of the type practised in
the American jurisdiction.”26 Ironically, the design of the Bangladeshi separa-
tion of powers as adopted is not the same as the Westminster model either. The
Constitution rather made “an assignment or distribution of diferent powers
of the Republic to the three organs” and, instead of an efective separation
of power, it set a canon that “no one organ could transgress the limits set by
the Constitution.”27 Moreover, in Bangladesh, the power of the members of
parliament is curtailed and controlled by a culture of dominance by party lead-
ership, which dominance is embedded in the Constitution (art. 70). Article
70 that bars members from voting against their party in parliament is, it may
23 See for example, Ayesha Jalal, Democracy and Authoritarianism in South Asia: A Comparative
and Historical Perspective (Cambridge University Press 1995); Lawrence Ziring, Pakistan: At
the Crosscurrent of History (Oneworld 2003).
24 Tan and Hoque (n 22).
25 On Bangladesh’s borrowing of the Westminster model of parliamentary democracy, see Chap-
ter 9 in this volume.
26 Islam (n 6) 15.
27 ibid v.
be argued, contrary to the parliamentary role in ensuring the accountability of

the government. It rather turns out to be a model of the elected authoritarian-
ism in the country.28
Whereas the discussion in this chapter is mainly related to the parliamentary
form of government, it is not irrelevant to mention that the constitutional
dismemberment by the 4th Amendment of 1975 resulted in the single-party
dominated presidential form of government – the form which was much criti-
cised and rejected by Bangladesh’s Constituent Assembly for excessive and
unaccountable power of the executive – the president.29 Ironically enough, the
presidential form under the 4th Amendment did not provide any mechanism
for checking the executive power that is seen even in a presidential system.30
As Islam rightly observed, that form of government “was an apology of a
presidential form as the normal checks and balances of a presidential form of
government was not incorporated.”31
The problem of demarcation of powers

Dividing the power and responsibility of the state into three organs at least
goes back to Aristotle. However, the demarcation line between the branches
in Bangladesh is blurry, perhaps a lot more than what a parliamentary model
of government would suggest. Categorisation of the executive may help to
clarify the matter. It is common to categorise the executive branch of the state
into two layers: the political executive and the permanent executive. Posts of
the president and ministers are within the first category, whereas the public ad-
ministration or the bureaucracy is the permanent executive.32 The relationship
between the two layers is crucial for efective democratic governance.
In Bangladesh, the constitutional positioning of the permanent executive
under the control of the political executive was a step to roll back from the
bureaucratisation of the Pakistan era, which was a continuation of the colonial
legacy with cosmetic changes.33 However, this control of the political execu-
tive over the permanent executive was a constitutional wish only. The reality
was bleak. One of the major concerns in the early 1970s was that a neutral
and autonomous permanent executive required for a working parliamentary
28 M Abdul Halim, Constitution, Constitutional Law and Politics: Bangladesh Perspective (4th
edn, CCB Foundation 2008) 186–187.
29 Richard Albert, ‘Constitutional Amendment and Dismemberment’ (2018) 43 Yale J of Int’l
Law 1.
30 Dilara Choudhury, Constitutional Development in Bangladesh: Stresses and Strains (Oxford
University Press 1997).
31 Islam (n 6) 18.
32 Shriram Maheshwari, ‘The Political Executive and the Permanent Executive: An Analysis of
the Emerging Role Patterns’ (1980) 26 Indian J of Public Administration 739.
33 Mohammad M Khan, ‘Resistance to Administrative Reform in Bangladesh, 1972–1987’
(1989) 9 Public Administration & Development 301.
democracy was not built at the time.34 Moreover, since independence the at-
tempts to reform the permanent executive towards aligning it to the constitu-
tional promise of good governance faced resistance.35 Each time the country
entered into an authoritarian regime, the permanent executive became in-
strumental support to the endurance of the regime.36 Also, there may be an
incapacity of the legislative branch in ensuring the executive. The political
capacity of the parliament that determines its ability to make the government
and the public servants accountable mostly depends on its political capacity.37
However, parliament loses its capacity in “a single-party majority government,
where party discipline is high and party leadership structure gives the Prime
Minister considerable dominance in his/her party.”38 Thus, the problem of de-
marcation of powers and functions of the three state organs demands a more
nuanced investigation. For example, where the arguably judicial function of
pardoning by the president under art. 49 sits within the theory of separation of
powers needs to be investigated.39 Other questions that need to be addressed
are the questions of whether art. 70, the anti-defection clause, is an obstacle
to the separation of powers or of the extent to which the executive can control
the judicial administration, which is presently the case in Bangladesh.40 How-
ever, the subsequent discussion is limited to some aspects of the constitutional
design of the political executive and its limits.
A cosmetic design of separation of power?

The Constitution dedicates three diferent parts to deal with the three distinct
powers: Part IV (arts. 48–64) deals with the executive power, while Part V
(arts. 65–92) and Part VI (arts. 94–117) deal with, respectively, the legislature
and the judiciary. However, these Parts of the Constitution do not clarify the
level or extent of separation of state powers. Besides, other relevant provisions
determine the relationship among the three branches of the Bangladeshi state.
34 A T R Rahman, ‘Administration and Its Political Environment in Bangladesh’ (1974) 47 Pa-

cific Afairs 171.
35 Khan (n 33).
36 It may be interesting to investigate the link between prestige, popularity, and aura of public
services and the regime types.
37 Muhammad M Rahaman, ‘Parliament and Good Governance: A Bangladeshi Perspective’
(2008) 9 Japanese J of Political Science 39.
38 ibid.
39 Article 49 is as follows: “The President shall have power to grant pardons, reprieves and respites
and to remit, suspend or commute any sentence passed by any court, tribunal or other authority.”
40 Judicial administration in Bangladesh is under the control of the executive branch through
the Ministry of Law, Justice, and Parliamentary Afairs. Moreover, articles 115 and 116 vested
the power in the executive branch to control the judiciary through the posting, promotion,
and disciplining of judicial ofcers. See, for example, M M Hossain, ‘Separation of Judiciary in
Bangladesh-Constitutional Mandates and Masdar Hossain Case’s Directions: A Post-Separation
Evaluation’ (2020) 11 Int’l J for Court Administration 4.
For example, article 22, which enshrines one of the judicially unenforceable
fundamental principles of state policy under Part II of the Constitution, ob-
ligates the state to “ensure the separation of the judiciary from the executive
organs of the State.” Yet this provision works as a ground for the separation of
the judiciary from the executive. The Supreme Court has interpreted the im-
pact and (indirect) enforceability of the fundamental principles of state policy
in several cases. One such remarkable and renowned case is Secretary, Ministry
of Finance v Masdar Hossain,41 which interpreted the impact of art. 22 on the
powers of the executive and the judiciary under the Constitution. The Supreme
Court afrmed that independence of the judiciary is a basic feature of the Con-
stitution, and, because of this salience, the government had an enforceable con-
stitutional duty to separate the lower criminal judiciary from the control of the
executive. Before this decision, magistrates administering criminal justice were
members of the permanent executive branch of the government.
Although the separation between the executive and judicial powers is a
constitutive element of judicial independence, the Bangladeshi judiciary is
not fully independent even in the post-Masdar Hossain era.42 Thus, questions
about the separation of powers remain. The independence of the judiciary is
rather an outcome of the practice of constitutionalism. That practice is dwin-
dling back and forth, rendering the judicial independence a matter of play at
the hands of politics.
Constituting an omnipotent prime minister

It may not be appropriate to comprehend the breadth, depth, and length of
the executive power from the limits imposed upon it. It is particularly more
challenging in the case of Bangladesh as the limits are not obvious and listed.
Thus, to comprehend the constitution of executive power, it is necessary to
understand the power that the executive holds under the existing constitu-
tional design. The Constitution gives very broad and blanket power to the
prime minister, for example. Article 55(2) says that “[t]he executive power of
the Republic shall, in accordance with this Constitution, be exercised by or
on the authority of the Prime Minister.”43 The executive power of the state is
vested in the prime minister. Interestingly, the subsequent clause, art. 55(3),
provides that the cabinet is collectively responsible to the parliament. The
Constitution diferentiates between the vesting of the executive power in
41 (2000) 20 BLD (AD) 104.

42 The magistracies, executive and judicial, were separated on 1 November 2007. However, the
separation does not ensure the independence of the judiciary as the control, supervision, post-
ing, and disciplining of judges are still largely at the hands of the executive.
43 In his speech presenting the draft Constitution Bill before the Constituent Assembly, Dr
Kamal Hossain remarked that “the cabinet formed under the leadership of the prime minister
shall exercise all executive power.” See Halim (n 49) 75. However, the Constitution replaced
the word “cabinet” with “prime minister.”
the prime minister and imposing responsibility on her. This diference, which
could also be explained as organic weakness,44 is an antithesis of the separa-
tion of powers in a parliamentary democracy. Besides, the Constitution seems
ambiguous in vesting the executive authority in the prime minister, as it was
done in Pakistan,45 and prescribed that all executive actions shall be done in
the name of the ceremonial executive, the president.46 However, this provi-
sion may not seem that ambiguous if it is read with the provision in the next
clause that “the President shall act in accordance with the advice of the Prime
Minister.”47
Choudhury observed that unlike in India, there were no “debates about the
type and nature of the executive to be adopted” at the time of constitution-
making.48 However, there were discussions, if not debates, about the form of
government in the Constituent Assembly. For example, Syed Nazrul Islam,
the acting president of Bangladesh, remarked that among two forms of separa-
tion of powers, one that is followed in the USA vested absolute power in the
president, which separated his ofce from the Congress and, thus, turned the
position into a dictatorship.49 To avoid the possibility of the whimsical power
of the presidential form of government, Mr Islam preferred the parliamentary
to the presidential form.50 Regarding the question of whether the prime min-
ister was given any excessive powers, he reasoned that the parliamentary gov-
ernment’s highest importance was given to the prime minister, which is usual
for this post if one looks at the examples of Britain and India.51 Moreover, the
motion of no-confidence that can be brought against the prime minister is the
parliamentary tool against the abuse of powers, he further argued.52 However,
bestowing excessive power on the prime minister, as is the case in Bangladesh,
is not a UK model.
A diferent argument was forwarded by Mrs Badrunnesa Ahmed when she
observed that it is dangerous to entrust all power to one individual like what
happened in the presidential form in Pakistan.53 Her argument in some way
substantiated Suranjit Sengupta’s comment that the executive power was so
designed that it placed an individual before the Constitution.54 Unfortunately,
to align with the party line in supporting the constitutional design of the
44 ibid.
45 Choudhury (n 31) 29.
46 The Constitution, art. 55(4).
47 ibid art. 48(3).
48 Choudhury (n 31) 24.
49 M Abdul Halim, Bangladesh Constituent Assembly Debate (1st edn, CCB Foundation 2014)
101. This actually happened to be true in the United States during Donald Trump’s presi-
dency in recent years.
50 Halim, ibid.
51 ibid 102–103.
52 ibid.
53 ibid 379.
54 ibid.
executive power, Mrs Ahmed argued, by referring to Harold Laski’s Parlia-

mentary Government in England, that entrusting more power to the prime
minister is not a problem as the prime minister remains accountable to par-
liament and parliament remains accountable to the people.55 It was not clear
how indirect accountability to the people is better than the direct election of
a president whereas both posts are entrusted with similar powers without no
practicable limits on them. It seems that choosing the form of government
was influenced by the anti-Pakistani sentiment, just merely in form, due to the
history of tyranny during the Pakistan period, and the form chosen did not
result from a strong commitment to a truly limited government. Although
Choudhury identified other reasons such as the familiarity with the parliamen-
tary form of government since the British period,56 the constitutional design
of the executive power as analysed suggests otherwise. Consequently, instead
of devising a more efective mechanism to tackle abuse of power, the framers
resorted to the rhetoric of parliamentary democracy as apathy to their experi-
ence during the Pakistan era without embedding the core principles of a lim-
ited government into the Constitution.
Although the excessive executive power of the prime minister was de-
fended by the logic of accountability through parliament, Bangladesh has
never had an efective parliament to ensure that accountability. We need to
look into the design of accountability proposed in the Constitution. First,
the executive branch is not directly responsible to the people, as indirect
responsibility through parliament (or through elections, to say otherwise) is
the chosen mechanism. Second, the anti-defection clause (art. 70) hinders
the accountability of the executive. Theoretically, the prime minister can be
removed from ofce through a no-confidence vote in parliament. Practically,
a successful no-confidence vote seems to be impossible. Article 70 states that
voting in parliament against the party will automatically lead to the vacation
of the seat of the concerned member. It is unclear whether art. 70 is appli-
cable in a no-confidence vote or what is meant by “against the party.” If art.
70 applies to a no-confidence vote or if “against the party” means against the
prime minister in a no-confidence motion, then the no-confidence process
does not seem to ofer an accountability mechanism at all vis-à-vis the prime
minister or her cabinet.
An all-powerful executive weakens accountability

The design of the accountability mechanism is also weak in art. 55(3). As
mentioned earlier, against the vesting of all executive power in the prime min-
ister, art. 55(3) provides a collective responsibility mechanism. Mr Suranjit
Sengupta proposed for a regime of individual responsibility of the cabinet
55 ibid.
56 Choudhury (n 30).
members in the light of constitutional conventions/norms in other countries

such as the UK. Dr Kamal Hossain, the chair of the Constitution Drafting
Committee, provided an evasive explanation as he clarified that the collec-
tive responsibility of the cabinet means that an individual minister will not
be responsible for another minister’s actions.57 He continued to say that it is
the prime minister, not the parliament, who can expel a minister. If any such
action is not taken by the prime minister, then the whole cabinet will be re-
sponsible to the parliament.58 This explanation takes us back to the problem
of the practical impossibility of any no-confidence motion created by art. 70.
While refuting the relevance of French and Italian mechanisms of individual
responsibility, Dr Hossain highlighted the diferences that exist between these
constitutional systems and that of Bangladesh. He did not find reasons to
translate the constitutional convention of individual responsibility into the
Bangladeshi system. Ironically, Bangladesh transplanted the foreign consti-
tutional practices of restricting constitutional fundamental rights, which, as
explained subsequently, had further weakened the separation of powers. Para-
doxically, the chosen principle of collective responsibility, originally devised as
a check on the executive power by parliament, “now conversely . . . operates
to strengthen the power of the prime minister, and to reduce the parliament’s
control” in Bangladesh.59
There is another mechanism in Bangladesh parliament through which the
government ministries can, at least theoretically, be held accountable. That
mechanism is the parliamentary committee (PC) system, necessary both for
executive accountability and the coordination between the executive and par-
liamentary functions. However, despite the achievements of the PCs, they are
not efective in ensuring the parliamentary check against the executive.60 While
the separation of powers requires that the relevant parliamentary committee and
the members of parliament (MPs) should have an important role in the budget
and although the parliament is possessed of the public purse,61 the parliamen-
tary committee or the MPs are powerless regarding the budget. Moreover,
rule 111(3) of the Rules of Procedure of Parliament (RoP) is clearly against
the separation of power as the rule says that “the Budget shall not be re-
ferred to any Committee and no other motion shall be made with reference
to it except as provided in the rules contained in this Chapter.”62 Further, the
RoPs have given wide powers to the prime minister.63 For example, rule 33
57 ibid 694.
58 ibid.
59 Halim (n 28) 208.
60 Nizam Ahmed, ‘Parliamentary Committees and Parliamentary Government in Bangladesh’
(2001) 10 Contemporary South Asia 11. See also, Chapter 10 in this volume.
61 Article 83 of the Constitution says that “[n]o tax shall be levied or collected except by or
under the authority of an Act of Parliament.”
62 Rules of Procedure of Parliament of the People’s Republic of Bangladesh 2007.
63 Akbar Ali Khan, Abak Bangladesh: Bichitro Chholonajale Rajniti (Surprising Bangladesh: Poli-
tics in Many Webs of Illusions) (2nd edn, Prothoma Prokashan 2018) 178.
prescribes that “the prime minister may, in any case, or classes of cases, permit
or condone a departure from these Rules to the extent he deems necessary.”64
Despite the design of an omnipotent and unaccountable executive branch,
the broad power vested in the prime minister has some limits. First, due to
constitutional supremacy, that power is subject to the Constitution. Moreo-
ver, there are inherent limitations of that power under art. 55(2) because the
prime minister “cannot act without the aid of his colleagues in the Cabinet.”65
Because of her dependence on the actions of the cabinet as a whole and the
principle of collective responsibility, the prime minister’s disregard for her col-
leagues may result in inefciency and erosion of her confidence in holding the
position.66 However, fifty years of political constitutionalism in Bangladesh has
rendered this mechanism a mere theoretical possibility due to the high leader-
ship power concentration, dynastic politics, and populism.
Judiciary and check on executive and legislative powers

Judicial review is one of the most efective and pragmatic mechanisms for en-
suring constitutional limits on the executive and legislative organs of the state.
This has become so routine and living a practice that one may overlook it as
too obvious. In Bangladesh, the Supreme Court’s writ jurisdiction under art.
102 of the Constitution against executive decisions or inactions is an example
of the application of limits on the executive.67 The writs issuable by the Court
in judicial reviews are limited by their content and the scope of relevant con-
stitutional provisions. The Supreme Court is indeed willing and ready to apply
“the due process test to determine the validity of governmental actions.”68
However, Ahmed identifies that even after the development of the law of writs
in the UK, the Supreme Court of Bangladesh is yet to maneuver the power
of writ of certiorari in adjudicating administrative law cases.69 For Ahmed, the
Court can broaden the scope of providing remedies within the constitutional
framework of fundamental rights adjudication in judicial review proceedings.
Nonetheless, there are successful instances of judicial review in checking and
balancing the executive power.70
64 According to section 13 of the General Clauses Act 1897, “he” includes “she.”
65 Islam (n 6) 301.
66 ibid.
67 On this aspect of judicial review, see Chapter 7 in this volume.
68 Islam (n 6) vii, referring to Ain-O-Shalish Kendra v Bangladesh (1999) 19 (HCD) BLD 488.
69 Syed Ishtiaq Ahmed, Certiorari: An Administrative Law Remedy (Mullick Brothers 2011).
70 See, for example, Sahar Ali v A. R. Chowdhury (1980) 32 DLR (HCD) 142; Dr Nurul Is-
lam v Bangladesh (1981) 33 DLR (AD) 201; Mohammed Ali v Bangladesh (2003) 23 BLD
(HCD) 389; Alam Ara Huq v Bangladesh (1990) 42 DLR (HCD) 98; Korban v Bangladesh
(2003) 55 DLR (HCD) 194; Shamima Sultana Seema v Bangladesh (2005) 57 DLR (HCD)
201; Rabia Bashri Irene v Bangladesh Biman (2000) 52 DLR (HCD) 308; Bangladesh Bi-
man v Rabia Bashri Irene (2003) 55 DLR (AD) 132; State v DC, Satkhira (1993) 45 DLR
(HCD) 643.
However, judicial checks on executive and legislative power may not be

smooth. For example, the practice of judicial law-making signals complexity.
Under its judicial review power, the judiciary sometimes issues directives to
the executive for making regulations or laws. Although such directives are “ap-
parently motivated by a benevolent desire for ensuring better governance,” the
trend of judicial law-making is contrary to the separation of powers.71 As Islam
observed, this trend symbolises the corrosion of democracy and, thus, reveals
the dysfunctionality of political forces while emboldening the functional im-
age of apolitical forces.72 The established theory of separation of power is not
so established in Bangladesh. Treating the problem as remaining with the ju-
diciary alone, therefore, overlooks the broader problem of the constitutional
design of powers in Bangladesh. However, the role of the judiciary should be
read in the context of ensuring the human rights of the people, discussed very
briefly in the following section.
Fundamental rights as a limit to the executive power

Fundamental rights are, perhaps, the most important contribution of modern
political constitutionalism. Though constitutions were theoretically originated
to limit the power of the states and to articulate the rights of the people, legal
constitutionalism evolved to develop limits on rights. Thus, the fundamental
rights became specific and continuously limited by the constitutional power of
the state. Constitutionalisation of freedom, thus, now performs two functions:
for the state, it acts as a limit to its powers, and, for the citizens, it not only
provides for what they are entitled to but also what they are restrained from
doing. As long as the restraining feature of fundamental rights is understood
to be the safeguard for other fellow citizens’ rights, they do not pose much
risk. However, if it is interpreted in terms of the security and other vague
power of the state organs, then it may jeopardise freedom.
During the making of the Bangladeshi Constitution, Dr Kamal Hossain
relied on an article by Rene Marcic73 to advance a reasoning for restrictions
associated with fundamental rights. Making a reference to the two methods of
imposing restrictions on fundamental rights – the general unrestricted power
of the legislature and the legislature’s power to impose restrictions on clearly
defined purposes – he observed that it is not possible to provide more safe-
guards than what is proposed in the Constitution.74 Four such clearly defined
purposes of imposing restrictions are: “(a) due recognition and respect for the
71 See M Rizwanul Islam, ‘Judges as Legislators: Benevolent Exercise of Powers by the Higher
Judiciary in Bangladesh with Not So Benevolent Consequences’ (2016) 16 Oxford U Com-
monwealth L J 219.
72 ibid.
73 Rene Marcic, ‘Duties and Limitations Upon Rights’ (1968) 9 J of the Int’l Commission of
Jurists 59.
74 Halim (n 49) 480.
rights and freedoms of others, and meeting the just requirements of (b) mo-
rality, (c) public order, and (d) the general welfare in a democratic society.”75
However, the Constitution subjects the fundamental rights to the general
powers of the legislature. Although the Bangalee are known to be argumenta-
tive (debaters)76 and one author highly applauded the culture of dissent in the
Constituent Assembly,77 it was not critically debated whether the restrictions
on fundamental rights were according to clearly defined community interests.
One author observed that “the Constitution of Bangladesh has struck a bal-
ance between the guarantee of individual rights and the collective interests of
the community.”78 However, there are instances, for example, in the Digital
Security Act 2018, where the freedoms were subjected to not-so-clearly de-
fined purposes.
The reasons for the birth of Bangladesh were embedded in the failure of
constitutionalism in Pakistan during 1947–1971. Ironically, however, the
founding Constitution of Bangladesh resembled Pakistan in some respects
including the structure of the executive power. Referring to Pakistan’s 1962
Constitution, Mr Sengupta remarked in the Constituent Assembly that the
constitutional power of the executive was designed in a way that would cater
to an individual, not an ofce.79 In addition to the emergency power that em-
powers the executive to curtail fundamental rights in an unrestricted manner,
restrictions on fundamental rights resemble the ones under the constitutions
of Pakistan of 1956 and 1962. The restrictions in the Pakistani Constitution
of 1956 were criticised by Bangabandhu in the then Constituent Assembly.80
Mr Asaduzzaman Khan, a member of the Bangladesh Constituent Assem-
bly, defended the restrictions by reference to the doctrine of police power,
practices in global constitutionalism, and the Universal Declaration of Hu-
man Rights 1948 (UDHR). He also argued that the reasonableness of any
restriction could always be tested in court.81 However, to what extent those
restrictions are reasonable or what would be the key test for determining the
reasonableness remain an unanswered question.
Moreover, generally, the fundamental rights are direct limits to all the or-
gans of the state. Scholars and lawyers have noted the diminishing status of
75 ibid.
76 Amartya Sen, The Argumentative Indian: Writings on Indian History, Culture and Identity
(1st edn, Picador 2006).
77 Asif Nazrul, ‘50 Years of Bangladesh Constitution: Intentions, Institutions and Implementa-
tions’, The Daily Star (3 July 2021) <www.thedailystar.net/views/opinion/news/50-years-
bangladesh-constitution-intentions-institutions-and-implementations-2122191> accessed 19
October 2021. Moreover, we cannot just overcome the lack of dissent in the Constituent
Assembly by applauding the dissent of the lone opposition member. The lack of dissent in
parliament is the breeding ground for an omnipotent executive power.
78 Halim (n 28) 103–104.
79 Halim (n 1) 215.
80 ibid 211–214.
81 ibid 273–280.
human rights conditions in Bangladesh in recent times,82 which can be at-

tributed to the flaws in the constitutional design that stretches the executive
power of the state beyond separation or balance of power. Human rights viola-
tions in today’s Bangladesh are mostly attributable to various executive or law-
enforcement agencies of the state. Judicial enforcement of human rights83 can,
therefore, serve as a significant means of ensuring separation of powers and
executive accountability. In the context of post-democratic-transition judicial
activism (post-1990),84 the Supreme Court has stood up in defence of the
constitutional rights of the citizens. In recent years, however, there is a sharp
decline in this judicial role, which is arguably associated with both democratic
backsliding and the lack of optimal judicial independence.
Conclusion
In creating the Constitution, the Constituent Assembly was nearly unanimous,
and it lacked the democratic culture of dissent. The charismatic leadership of
Bangabandhu also contributed to the lack of any strong dissent from the party
members. Objectivity and impersonality were, thus, compromised in the con-
stitutional design of the executive powers in Bangladesh in 1972. What history
witnessed later was that an executive ofce designed for a benevolent leader
failed to be a befitting ofce for the successors including the leader himself.
Here lies a source of complexities reflected in the constitutional amendments
that changed the form of government several times. While the form of govern-
ment was changed, the design, including the excessive extent, of the executive
power was not changed. It can be concluded that the constitutional design
in Bangladesh did not provide efective separation of powers from the very
beginning.
For Bangladesh, what is necessary is a sophisticated tension among the three
main organs of the state so that there is a balance of power.85 The examples
of sophisticated tension found in the American and British models were not
followed in Bangladesh. Moreover, “balance” is not mere rhetoric as opposed
to the understanding of political leaders about it;86 it is to be understood in
82 Shahdeen Malik, ‘Culture of Constitutional Amendments: (Contentious) Reflections’, in

Ahmed Javed (ed), Constitution of Bangladesh: Various Issues (1st edn, Anyaprokash 2020) (in
Bangla).
83 See art. 44(1) of the Constitution, which guarantees the right to seek judicial remedies for
the breaches of fundamental rights. Article 102(1), on the other hand, empowers the High
Court Division of the Supreme Court to enforce fundamental rights by issuing an appropriate
remedy including writs under art. 102(2).
84 See, generally, Ridwanul Hoque, Judicial Activism in Bangladesh: A Golden Mean Approach
(Cambridge Scholars Publishing 2011).
85 Reducing power, duration, and the number of terms is an obvious solution.
86 ‘President for Maintaining Balance among Three State Organs’ The Dhaka Tribune (7 Decem-
ber 2019) <https://archive.dhakatribune.com/bangladesh/dhaka/2019/12/07/president-
for-maintaining-balance-among-three-state-organs>.
terms of the relative capacity of the state organs. In Bangladesh, the executive
branch is omnipotent, and the two other branches lack the capacity to ensure
balance. Instead of a constitutional design of tension among the state organs,
the Constitution increased the power of the executive by keeping a gap in
accountability mechanisms and imposing vague restrictions on fundamental
rights, among others. Most noticeably, the Constituent Assembly designed the
executive power to fit the grandeur of Bangabandhu Sheikh Mujibur Rahman
at the time. Individual leaders have inspired the framing of political institu-
tions in history. However, if the influence of those individuals extends beyond
providing guidance and leads instead to designing power supposedly with a
particular individual in mind, then it is difcult to avoid the harm of individual
emotions, impulses, and temptations upon the political institutions.
9 Parliament of Bangladesh
Constitutional position and
contributions
M Jashim Ali Chowdhury*
Introduction
At the end of British colonial rule in 1947, Bangladesh became a part of Paki-
stan. It declared independence in March 1971, fought a nine-month-long war,
and emerged as an independent state in December 1971. At independence,
Bangladesh adopted the Westminster parliamentary system of government.
Like their subcontinental forerunners in India and Pakistan, the framers of the
Bangladesh Constitution had a natural orientation towards the Westminster
traditions.1 The Pakistani military’s authoritarian, presidential, and “internal
colonial rule”2 also contributed to that preference. However, the fifty years
of Bangladesh’s political history recorded a roller coaster ride through a one-
party regime (1972–1975) followed by several phases of direct or indirect
military rule (1975–1990 and 2006–2007), a phase of “competitive authori-
tarian governance”3 by two rival political parties (1991–2006),4 and, lastly, the
one-party monopoly (2014-present).5
The political constitutionalism that followed Bangladesh’s independence
was highly executive-minded. The constitution-making and the state-building
process were heavily conditioned by the charismatic leadership of the country’s
* A substantial part of this chapter is adapted from my PhD thesis. See M Jashim Ali Chowdhury,
The ‘Westminster’ Parliament of Bangladesh: A Critical Evaluation (Unpublished PhD Thesis,
King’s College London 2022).
1 Ridwanul Hoque, ‘The Founding and Making of Bangladesh’s Constitution’ in Kevin YL Tan
and Ridwanul Hoque (eds), Constitutional Foundings in South Asia, 91–119 (Hart Publishing
2021) 106, 115.
2 Nizam Ahmed, ‘In Search of Institutionalisation: Parliament in Bangladesh’ (1998) 4(4) J of
Legislative Studies 34, 35.
3 Under competitive authoritarianism, nominally democratic institutions such as opposition
parties and periodic elections are allowed to exist, but the ruling party manages to hold
onto power through brute force and the fraudulent use of the electoral process. See Steven
Levitsky and Lucan Way, ‘The Rise of Electoral Authoritarianism’ (2002) 13(2) Journal of
Democracy 51.
4 SM Mostofa and DB Subedi, ‘Rise of Competitive Authoritarianism in Bangladesh’ (2021) 14
Politics and Religion 431.
5 Ali Riaz, Bangladesh: A Political History since Independence (IB Tauris 2016).
DOI: 10.4324/9781003276814-12
146 M Jashim Ali Chowdhury
founder President Sheikh Mujibur Rahman (Bangabandhu).6 Although the

Constitution preferred a cabinet government drawn from, and responsible to,
the parliament, the parliament did not get as much importance as a typical
Westminster parliament deserved. The political forces perceived the legislature
as a deliberative forum and an enabling, rather than accountability, institu-
tion.7 This chapter tries to make sense of this trivialisation of the legislative
branch by referring to Bangladesh Parliament’s Three Eastminster Traits that
distinguish its position and stature from its Westminster progenitor – the Brit-
ish parliament. The Three Eastminster Traits are identified from what Kumar-
asingham calls the South Asian region’s “Five Eastminster Deviations”8 from
the Westminster system.
The next section will summarise the history of parliamentary politics in
Bangladesh. Then, it will briefly outline Kumarasingham’s “Five Eastminster
Deviations” from the Westminster model and identify the Three Eastminster
Traits that constitute the focus of this chapter. It also considers how those
three deviations – the dynastic and hereditary rule of political selection, ab-
sence of internal party democracy, and the brute majoritarian politics – weaken
the Bangladesh parliament’s constitutional position and limit its contribution
to the country’s constitutionalism. The chapter concludes by summing up the
findings.
A brief history of the Bangladesh parliament

During the liberation war of 1971, the Bangladeshi revolutionaries issued a
Proclamation of Independence,9 formed a Constituent Assembly, and opted
for an absolutist presidential government as a wartime arrangement. Under-
standably, the Assembly lacked the legislative power, and the president was
given a blank check in conducting the war. After the war, the Provisional Con-
stitution Order of 197210 replaced the presidential system with a parliamentary
government. Under the new arrangement, the prime minister and his cabinet
were made accountable to the Constituent Assembly. The Assembly, however,
did not gain the general legislative power. It was confined to the sole task
of framing the Constitution. The president retained his wartime legislative
6 Moudud Ahmed, Bangladesh: Era of Sheikh Mujibur Rahman (University Press Ltd 1983)
6–8.
7 M Jashim Ali Chowdhury and Raihan Rahman Rafid, ‘Parliaments during the Pandemic: A
Dual State Explanation of Bangladesh Jatiya Sangsad’ (2020) 18(1–2) Bangladesh J of Law
25, 44–45.
8 Harshan Kumarasingham, ‘Eastminster: The Westminster Model in British Asia’ (The Con-
stitution Unit, Department of Political Science, University College London, 22 September
2016).
9 The Proclamation of Independence of 10 April 1971 (with efect from 26 March 1971),
annexed to the Constitution as the 7th Schedule <http://bdlaws.minlaw.gov.bd/upload/
act/2022-04-18-13-27-54-Scheudle__367.pdf> accessed 29 May 2023.
10 The Provisional Constitution of Bangladesh Order 1972.
Parliament of Bangladesh 147
power. By the time the Constitution was adopted on 4 November 1972, a

large body of Bangladesh’s administrative and public law was built by presiden-
tial orders and executive regulations.11
Election to the first parliament was held in March 1973. Shortly, the 4th
Amendment of February 1975 converted it into a servile legislature under a
one-party presidential government.12 Parliament’s role was substantially cur-
tailed.13 While a significant number of the ruling party members were report-
edly not in favour of the proposed amendment,14 they had to give way to the
preference of their leader, Bangabandhu.15 The decision to radically transform
the system was taken outside the parliament and presented to its members as
a fait accompli.16
Months later, a brutal coup on 15 August 1975 killed Bangabandhu and
most of his family members. Power then went to the military, and a series of
coups and countercoups ultimately placed Major General Ziaur Rahman (Zia)
in the presidency in 1977. Zia continued with the presidential system intro-
duced by the 4th Amendment but permitted multiple political parties to exist.
Election to the second parliament (1979–1981) was held in 1979. Zia’s hast-
ily constituted Bangladesh Nationalist Party (BNP) got an absolute majority
over Bangabandhu’s party, the Awami League (AL). However, the status of
parliament under Zia’s presidential government remained unclear. While Zia’s
supporters boosted it as “independent” and “sovereign”, the parliament’s in-
ability to make the government answerable, the president’s absolute authority
to dissolve it, and the consistent suppression of its law-making power by exces-
sive use of presidential ordinances created a situation where the legislature was
arguably legitimising policies rather than legislating.17
Zia was assassinated in April 1981 by a dissident section of the Army. The
Army chief Hossain Mohammad Ershad (Ershad) seized power in March
1982. After four years of absolute military rule, Ershad followed his predeces-
sor Zia’s footsteps and sought to civilianise his regime. As part of the process,
Ershad formed his political party – Jatiya Party (JP). Election to the third par-
liament was held in 1986. The result was considered rigged in favour of JP,18
11 Justice Mustafa Kamal, Bangladesh Constitution: Trends and Issues (University of Dhaka 1994) 6.
12 Known as BAKSAL (Bangladesh Krishak Sramik Awami League), the party was placed at the
helm of a soviet-style socialist system.
13 Zillur R Khan, ‘Bangladesh’s Experiments with Parliamentary Democracy’ (1997) 37(6) Asian
Survey 575, 580.
14 Ahmed (n 6) 208–209.
15 M Morshedul Islam, ‘The Politics behind the Passage of Fourth Amendment to the Constitu-
tion of the People’s Republic of Bangladesh and Its Provisions: A Modest Analysis’ (2014)
4(9) Public Policy and Administration Research 55.
16 Ahmed (n 6) 217, 233.
17 Azizul Haque, ‘Bangladesh 1979: Cry for a Sovereign Parliament’ (1980) 20(2) Asian Survey
217, 221–122.
18 Staf Correspondence, ‘Violence Mares Election in Bangladesh 1985’ The New York Times (5
August 1986) <https://www.nytimes.com/1986/05/08/world/violence-mars-bangladesh-
election.html> accessed 29 May 2023.
which, despite the rigging, got only a simple majority in parliament. Later, the
third parliament (1986–88) legitimised Ershad’s accession to power through
a constitutional amendment. However, Ershad found the presence of a strong
parliamentary opposition unhelpful. In the face of a brewing anti-government
movement, Ershad dissolved the third parliament in 1988 and called the new
election the same year. The fourth parliament (1988–1990) was notorious for
hosting unknown political parties collectively labelled as the Combined Op-
position Party (COP). The coalition was hurriedly coalesced together just days
before the election, which the leading opposition parties boycotted, hence the
term “domesticated opposition parties” for the COP.19 However, in the face of
violent street agitation and growing public resentment against his rule, Ershad
had to dissolve the parliament and quit in December 1990.
Operating under presidents hailing from the garrison, the second, third,
and fourth parliaments had little to ofer in democratic legislation and par-
liamentary oversight.20 Apart from being used as a legitimising tool for the
presidents, those parliaments barely had a role in the policy discourse. Presi-
dential ordinances massively outnumbered the laws passed by those parlia-
ments.21 In 1990, the parties mobilising against Ershad’s regime promised
to forestall the parliament in the centre of democratic governance once the
regime changed.
A non-political caretaker government was formed after the resignation of
Ershad, and it held the fifth parliamentary election in 1991, which returned
the BNP to power under the leadership of Zia’s wife, Begum Khaleda Zia (Be-
gum Zia). During its initial two years, the fifth parliament experienced a livelier,
participatory, vigilant opposition and meaningful instances of backbench asser-
tiveness.22 This parliament passed the 12th Amendment that restored the par-
liamentary system sixteen years after it was abolished in 1975.23 Unfortunately,
the fifth parliament’s encouraging vibe could not be carried through. In 1994, a
parliamentary by-election was widely rigged in favour of the ruling party, BNP.24
The opposition parties then started boycotting parliament. Later, the opposi-
tion MPs resigned en masse from parliament, demanding the introduction of an
election-time non-party caretaker government. As soon as the opposition parties
resigned and started agitating in the streets, the backbenchers strongly coalesced
19 Syed Rahman, ‘Bangladesh in 1988: Precarious Institution-Building Amid Crisis Manage-

ment’ (1989) 29(2) Asian Survey 216, 217.
20 Nizam Ahmed, ‘Parliamentary Committees and Parliamentary Government in Bangladesh’
(2001) 10(1) Contemporary South Asia 11, 13–14.
21 M Abdul Halim, Constitution, Constitutional Law and Politics: Bangladesh Perspective (2nd
edn, Md. Yusuf Ali Khan 2003) 261–164; M Habibur Rahman, ‘Our Experience with Con-
stitutionalism’ (1998) 2(2) Bangladesh J of Law 115, 126.
22 Nizam Ahmed, ‘Parliamentary Opposition in Bangladesh: A Study of its Role in the Fifth
Parliament’ (1997) 3(2) Party Politics 147.
23 Ahmed (n 20) 15.
24 Golam Hossain, ‘Bangladesh in 1994: Democracy at Risk’ (1995) 35(2) Asian Survey 172.
behind their respective party leadership.25 With politics being taken back to the
street again, the fifth parliament had to be dissolved before its tenure.
An uncompromising BNP went for a one-party election to the sixth parlia-
ment in February 1996 and returned with a landslide victory.26 The stubborn
opposition (AL, JP, and their allies) then increased the scale of violent agita-
tions. Therefore, the sixth parliament lived a life of months.27 Before dissolu-
tion, it enacted the 13th Amendment to the Constitution and introduced an
election-time non-party caretaker government.28
The seventh parliament, established through a general election in 1996, saw
Bangabandhu’s daughter (Sheikh Hasina) and his party (AL) back in power.
BNP secured more than 100 seats and became the largest opposition in the
history of parliament.29 The seventh parliament also became the first parlia-
ment since independence to complete its full tenure (1996–2001). One of its
major successes was the committee system’s consolidation.30 Apart from estab-
lishing the parliamentary standing committees, the seventh parliament started
sending legislative Bills to special select committees for scrutiny.31 However,
BNP continued to raise questions about the speaker’s partisan role and staged
a continuous boycott and walk-out of parliament during its tenure.
BNP and its coalition partner Jamaat-e-Islami (JI) dominated the eighth
parliament (2001–2006). Despite several committees working on a bipartisan
basis,32 this parliament also was hit by a continuous opposition boycott and a
dysfunctional committee system. The ninth parliament (2009–2013), domi-
nated by AL, showcased a relative success in institutionalising the committee
system. The weakened and consistently boycotting opposition, however, re-
mained a continuing concern. Most disturbingly, this parliament abolished the
non-party caretaker system.33 BNP boycotted the tenth parliamentary election
held under the AL government. In the one-party election of 5 January 2014,
25 Nizam Ahmed, The Parliament of Bangladesh (Routledge, reprint 2018) 226–227.

26 Adeeba A Khan, Electoral Institutions in Bangladesh: A Study of Conflicts between the Formal
and the Informal (PhD Thesis, School of Oriental and African Studies 2015) 27, 29 <https://
eprints.soas.ac.uk/23587/1/Khan_4280.pdf> accessed 29 May 2023.
27 Craig Baxter, ‘Bangladesh: Can Democracy Survive?’ (1996) 95(600) Current History 182.
28 The caretaker government headed by a retired chief justice of the Supreme Court would take
charge of the government during the election and provide the logistic and administrative
support to the Election Commission. For details, see Sonia Z Khan, The Politics and Law of
Democratic Transition: Caretaker Government in Bangladesh (Routledge 2017).
29 In the seventh parliamentary election, the main opposition party, BNP secured 116 seats
against the 146 seats of the ruling party AL. For statistical data on parliamentary elections,
see Nizam Ahmed, The Bangladesh Parliament: A Data Handbook (BRAC University Press
2013).
30 Muhammad M Rahman, ‘Parliament and Good Governance: A Bangladeshi Perspective’
(2008) 9(1) Japanese J of Poll Sc 39, 54.
31 Ahmed (n 2) 55.
32 Rahman (n 30) 54–55.
33 Adeeba A Khan, ‘The Politics of Constitutional Amendments in Bangladesh: The Case of the
Non-Political Caretaker Government’ (2015) 3 Int’l Rev of Law 11.
AL returned to power with a landslide victory.34 The AL has since contin-

ued to successfully manipulate its ally, JP, to play the role of the ofcial op-
position. With an ally pretending to be an opposition, the tenth parliament
(2014–2018) showed weak conviction towards government accountability. In
the eleventh parliament (2019–present), the country’s second-largest political
party, BNP, initially held a handful of parliamentary seats. By the end of 2022,
those handful of BNP MPs resigned their seats. The parliament continues to
be servile to an invincible cabinet government.
“Deviations” of the Westminster parliamentary

system in the East
Kumarasingham used the “Eastminster” coinage to theorise the working of
the Westminster system in the Indian subcontinent. His studies explain how
the formal constitutional institutions of these countries are largely circum-
scribed by informal and cultural value systems that nurture a personalisation,
rather than institutionalisation, of powers.35 Kumarasingham identifies five cul-
tural traits that diferentiate a Westminster-idealised from an “Eastminster”-in-
action. He argues that an Eastminster-in-action is identifiable through the presence
of a) elite-controlled “selective dictatorship” (opposed to Westminster’s “elective
dictatorship”), b) a personalised perception of public power (opposed to West-
minster’s institutionalised perception), c) crude majoritarianism intolerant of the
opposition (opposed to the Westminster’s bipartisanship), d) an interfering presi-
dency (opposed to the Westminster’s disengaged monarchy), and e) an “abusive
viceregalism” (opposed to the Westminster’s conventional norm of exercising the
prerogative powers in a politically accountable way).36 The first three of these “Five
Eastminster Deviations” are particularly relevant for the Bangladesh parliament.
The first deviation, the prime minister and cabinet’s “selective dictatorship”,
is distinguishable from Westminster’s “elective dictatorship”. Britain’s theo-
retical “elective dictatorship” operates within a practical chain of democratic
delegation.37 The authority is primarily delegated from the people to the ma-
jority party, then to the cabinet, and finally to the prime minister. Within each
delegation chain, there exists a corresponding chain of accountability. The
34 Ali Riaz, ‘Bangladesh’s Failed Election’ (2014) 25(2) Journal of Democracy 119.
35 Harshan Kumarasingham, ‘Eastminster – Decolonisation and State- Building in British Asia’
in Harshan Kumarasingham (ed), Constitution-Making in Asia, Decolonisation and State-
Building in the Aftermath of the British Empire (Routledge 2016), 1–35.
36 Harshan Kumarasingham, ‘Written Diferently: A Survey of Commonwealth Constitutional
History in the Age of Decolonisation’ (2018) 46(5) Journal of Imperial and Commonwealth
History 874, 892.
37 In 1976, Lord Hailsham famously labelled the British government as an “elective dictator-
ship” that is “absolute in theory but tolerable in practice”. The system is tolerable because the
cabinet dictatorship over the parliament is compensated, to some extent, by the intra-party
accountability of the prime minister. See Lord Hailsham, ‘Elective Dictatorship’ (The Richard
Dimbleby Lecture, 14 October 1976, BBC, London).
cabinet is answerable to the majority party backbench and, to some extent,

the opposition. The prime minister’s sustenance depends on the continued
confidence of his cabinet colleagues and the party backbench. In Eastmin-
ster, Kumarasingham argues, Westminster’s “elective dictatorship” is replaced
by a “selective dictatorship” system.38 The selective dictators here efectively
subdue their cabinet colleagues and the parties. Absolutist leaders successfully
established an alternative chain of delegation and selection from the reservoir
of their relatives and retainers in the family lines.39
The second deviation is marked by a socially resonant fondness of personal-
ist and clientelist, rather than institutionalist, public power.40 Kumarasingham
argues that the East’s political and legal relationships are built upon a “com-
plex of personal relationships” diferent from the West’s institutional ideas of
public power.41 The system operates within an “authoritarian framework of
constitutionalism” where the rules of law are applied to perpetuate a particu-
lar person or group of persons’ power.42 Once the personalisation of power
is ingrained at the top echelon of a party structure, a series of personalities
or dynasties take root at the subordinate layers of the party hierarchy. In the
process, the prospects of intra-party democracy and the bottom-up leadership
selection wither away, and parties become entangled in a clientelist chain of
top-to-bottom accountability. Members of parliament selected through the
process are expected to adopt a mere partisan delegate or mercenary’s role in
their parliamentary works.
Thirdly, the conditions supportive of a liberal-conservative bipartisanship
are largely absent in the East. The Westminster system essentially depends
on the existence of at least two main and stable political parties that alter-
nate in government at a reasonable frequency.43 Regular and orderly altera-
tion of power constitutes an incentive for the parties to preserve and defend
the model in the expectation that all will benefit from it in the long run.44 In
Eastminster, the opposition is a matter of suspicion and suppression rather
than appreciation.45 Therefore, the brute majoritarianism that results from a
38 Kumarasingham (n 8).
39 Harshan Kumarasingham, A Political Legacy of the British Empire: Power and the Parliamen-
tary System in Post-Colonial India and Sri Lanka (IB Tauris 2013) 19–21.
40 Andrew Harding, ‘The Rulers and the Centrality of Conventions in Malaysia’s ‘Eastminster’
Constitution’ in Harshan Kumarasingham (ed), Constitution-Making in Asia – Decolonisation
and State-Building in the Aftermath of the British Empire (Routledge 2016) 257, 270, 272.
41 Kumarasingham (n 39) 11.
42 ibid 26.
43 Peter Trubowitz and Nicole Mellow, ‘“Going Bipartisan”: Politics by Other Means’ (2005)
120(3) Poll Sc Quarterly 433, 434.
44 Gregoire Webber, ‘Loyal Opposition and the Political Constitution’ (2017) 37(2) Oxford J
Legal Studies 357.
45 M Jashim Ali Chowdhury, ‘In Search of Parliamentary Opposition in Bangladesh’ (IACL-
AIDC Blog, 21 January 2021) <https://blog-iacl-aidc.org/2021-posts/2021/1/21/in-
search-of-parliamentary-opposition-in-bangladesh> accessed 29 May 2023.
Westminster system minus its bipartisan framework makes the East’s political
competition unprincipled and mutually destructive.
The next three parts of the chapter will consider how these Eastminster
deviations – which I call the Bangladesh parliament’s Three Eastminster Traits –
impact its existence, work, and contribution to the Bangladeshi Constitution.
“Selective dictatorship” and the ministerial responsibility in

Bangladesh
By the 1980s, Bangladesh’s party system had a strong dynastic shape. During
the democratic revival movement in the early 1990s, Bangabandhu’s daughter
Sheikh Hasina was placed at the helm of the AL. Zia’s widow Begum Zia got
a similar hold over the BNP, while the deposed ruler Ershad got a very firm
personal grip over the JP. The emergence of such a personalistic leadership
style has hurt the development of intra-party democracy and inter-party rela-
tionships in the later decades.46
The ascendancy of the executive branch has been reinforced by a near ab-
dication of meaningful debates and deliberations in parliament and scrutiny in
the committee stages. The selective dictatorship resulting from the country’s
clientelist, patrimonial, and dynastic political party system has created an ab-
solute dominance, not mere whipping, of the political parties and the persons
or dynasties leading them.47 This scenario has efectively cut down the chain of
vertical and horizontal governmental accountability to the people, parliament,
and the judiciary. The lack of intra-party democracy has afected the parlia-
ment’s capacity to enforce the government’s collective responsibility and the
ministers’ individual responsibility in numerous ways. It also has severely cur-
tailed the parliament’s legislative power and the committees’ scrutiny power.
Articles 55(3) and 57(2) of the Constitution require the prime minister
to resign if s/he ceases to retain the support of a majority of the members
of parliament.48 However, no prime minister in Bangladesh has ever faced a
no-confidence motion in the parliament, nor did they face a leadership chal-
lenge from within their parties. The Constitution contains an anti-defection
clause, known as article 70. It bars the members from voting against their
parties on the floor of parliament and remains a Damoclean sword49 upon
the backbenchers of the ruling and opposition parties. Article 70’s purpose
and impact have been widely debated. While the framers of the Constitution
46 Quamrul Alam and Julian Teicher, ‘The State of Governance in Bangladesh: The Capture of
State Institutions’ (2012) 35(4) South Asia: J of South Asian Studies 858, 876–880.
47 Nizam Ahmed, ‘Parliament-Executive Relations in Bangladesh’ (1997) 3(4) J of Legislative
Studies 85–88.
48 The Constitution of the People’s Republic of Bangladesh, art. 58(4) <http://bdlaws.minlaw.
gov.bd/act-367.html> accessed 29 May 2023.
49 Justice Badrul Haider Chowdhury, former chief justice of Bangladesh, quoted in AKM Sham-
sul Huda, Constitution of Bangladesh, vol 2 (Rita Court 1997) 560.
justified it as a protection against amoral defections by the MPs and the con-
sequent fall of governments,50 it is popularly identified as the sole trouble-
maker in Bangladesh’s parliamentary politics.51 There is a perception that the
total removal of article 70 from the Constitution might cause sudden disin-
tegration of the major political parties,52 especially when the article is not the
only reason for the lack of backbench assertiveness.53 Apart from a voting
restriction, it does not bar the MPs from debating their government’s poli-
cies on the House floor and scrutinising the government in the committees.
The internally undemocratic political parties constitute the greatest barrier
to backbench autonomy. While the MPs may criticise or ask questions or
explanation from ministers, they cannot enforce their resignation unless the
prime minister so intends. Article 58(2) of the Constitution has made the
ministers answerable to the prime minister rather than to the parliament.
Therefore, the parliament’s incapacity to enforce the collective and individual
ministerial responsibility marks a “ministerial non-responsibility”54 regime in
Bangladesh.
The undemocratic and clientelist party system has afected the parliamen-
tary committees as well. The Constitution55 and the parliament’s Rules of Pro-
cedure mandated a committee system comprising standing committees, select
committees, and special ad hoc committees.56 The parliamentary standing
committee system sufers structural (institutional and procedural), political,
and behavioural (attitudinal) setbacks.57 Party influence over the committee
agenda and hard-lined party stances of the members on key issues hamper
the committees’ autonomous functioning. Committees have been structur-
ally weakened by factors like ministers’ presence in the committee as ex ofcio
50 Sabbir Ahmed, ‘Article 70 of the Constitution of Bangladesh: Implications for the Process of
Democratisation’ (2010) 31(1) BIISS Journal 1, 3–7.
51 In the 16th Amendment case – Advocate Asaduzzaman Siddiqui v Bangladesh (2016) 10
ALR (AD) 03 – for example, the Supreme Court considered article 70 to be an ominous
threat to the parliament’s autonomy. See M Jashim Ali Chowdhury and Nirmal Kumar Saha,
‘Advocate Asaduzzaman Siddiqui v. Bangladesh: Bangladesh’s Dilemma with Judges’ Im-
peachment’ (2017) 3(3) Comp Constitutional & Administrative L Quarterly 7, 16.
52 Zahed Iqbal, ‘Article 70 of the Constitution: A Critical Analysis (In Bangla)’ (8th Monthly
General Meeting of the Asiatic Society of Bangladesh, Dhaka, 8 April 2021) 15.
53 Hasanuzzaman, ‘To Amend Article 70 or Not’, The New Age (Dhaka, 22 April 2011) <http://
cpd.org.bd/pub_attach/To%20Amend%20Article%2070%20or%20not.pdf> accessed 29 May
2023.
54 M Jashim Ali Chowdhury, ‘Ministerial Non-Responsibility’, The Daily New Age (Dhaka, 31
May 2019) 6.
55 The Constitution (n 48) art. 76(1)
56 The Rules of Procedure of Bangladesh Parliament 1973, rule 189(1) <www.parliament.gov.
bd/index.php/en/parliamentary-business/procedure/rules-of-procedure-english> accessed
29 May 2023.
57 Nizam Ahmed, ‘Reforming the Parliament in Bangladesh: Structural Constraints and Politi-
cal Dilemmas’ (1998) 36(1) Commonwealth and Comparative Politics 68, 71; Ahmed (n 20)
31–33; Ahmed (n 47) 77–78.
members,58 nominal logistic support from the parliament secretariat, and the
negative attitude of the bureaucracy towards the parliamentary oversight pro-
cess.59 Partisan control over the appointment of members and chairs of the
committees jeopardises the committees’ assertiveness and retards their ex-
pertise.60 Absent a political will to change the status quo, the parliamentary
committees will continue to play only a marginal role in ensuring executive
accountability and legislative quality.61
Undemocratic party system, role abdication, and

localisation of the MPs
Strict partisan control over the legislative process has significantly minimised
the parliament’s actual ability to legislate. Hoque’s study shows that Bang-
ladesh’s first four constitutional amendments (1973–1975) were conceived
and drafted at the sole discretion of the party in power.62 Those were later
tabled and passed in parliament with almost no deliberation. The most con-
troversial one – the 4th Amendment – altered the Constitution drastically.
Still, it was passed through less than thirty minutes of parliamentary delib-
eration.63 The 5th to 10th Amendments (1979–1990) were passed by three
“rubber stamp parliaments”64 working to “achieve constitutional changes
desired by the military rulers”.65 The 11th and 12th Amendments (1992)
were largely based on a political consensus outside the parliament. The 11th
Amendment legitimised a chief justice–led government that conducted the
1991 parliamentary election. The 12th Amendment (1991) restored the
parliamentary system, and the 13th Amendment (1996) constitutionalised
the election-time caretaker government system, the basic principles of which
were agreed upon through “mere élite preferences rather than deliberative
and participatory decision making”.66 With the key principles having been
decided outside the parliament, the caretaker system lacked any inputs from
58 M Jashim Ali Chowdhury, ‘11th Parliament: Rays of hope for the Committee System’, The
Daily Star Law and Our Rights (Dhaka, 5 March 2019) <www.thedailystar.net/law-our-
rights/news/11th-parliament-rays-hope-the-committee-system-1710775> accessed 29 May
2023.
59 ATM Obaidullah, ‘Standing Committees on Ministries in the Bangladesh Parliament: The
Need for Reorganisation’ (2011) 18(2) South Asian Survey 317, 322.
60 Navid Saifullah, ‘Efectiveness of the Parliamentary Standing Committees in Bangladesh’
(Master’s in Governance and Development Thesis, BRAC University 2006).
61 Muhammad Mustafizur Rahaman, ‘The Limits of Foreign Aid in Strengthening Bangladesh’s
Parliament: Analysis of the UN’s Strengthening Parliamentary Democracy Project’ (2010)
50(3) Asian Survey 474, 483–494.
62 Ridwanul Hoque, ‘Deconstructing Public Participation and Deliberation in Constitutional
Amendment in Bangladesh’ (2021) 21(2) Australian J of Asian Law 7, 11–13.
63 ibid.
64 Haque (n 17).
65 Hoque (n 62) 15.
66 Khan (n 28) 2.
the government backbench or parliamentary committees.67 The 14th (2001),

15th (2011), and 16th (2016) Amendments represent what Hoque calls
examples of “abusive constitutional amendments”.68 The 14th Amendment
increased the retirement age of the Supreme Court judges allegedly to po-
liticise the upcoming caretaker government (2006). The 15th Amendment
abolished the then caretaker government at the sole decision of the head of
the government, ignoring the views of an all-party parliamentary committee.
The committee expressed a clear preference for retaining the caretaker gov-
ernment after consulting hundreds of constitutional experts, Supreme Court
judges, civil society leaders, journalists, and people from diferent walks of
life.69 However, Prime Minister Sheikh Hasina had a diferent opinion, and
the amendment Bill, reflecting her choices, was passed literally within minutes
of its presentation to the parliament.70
Constitutional amendments apart, the parliament’s general capability to de-
liberate and influence the legislation has been minimal. Until the mid-1990s,
governments frequently legislated through presidential ordinances. After the
demise of military rule in 1990, around one-third of laws passed by the fifth
parliament (1991–1996) were the approval of presidential ordinances issued
earlier.71 Most of them, including the bulk of other regular parliamentary bills,
did not go through committee scrutiny either.72 The number of ordinances
has decreased since the seventh parliament (1996–2001). However, the par-
liament’s legislative power did not increase. The Transparency International
Bangladesh’s study of the incumbent parliament’s legislative activities in 2019
shows that it spent an average of 32 minutes passing each bill laid on the
table. The time included time for formal presentment, MPs’ discussion, the
minister’s speech, and voting.73 One of the latest examples of the trend has
been the 2022 Act for the appointment of election commissioners,74 which es-
tablishes a search committee for appointments to the Election Commission.75
67 MSH Bhuiyan, ‘The Caretaker Government in Bangladesh: An Appraisal of its Formation’,

(2003) 40 Politics Administration and Change 33, 46–47.
68 Hoque (n 62) 17–18.
69 Maimul A Khan, ‘Constitutional Disaster and ‘Legal’ Impunity: Constitutional Amend-
ments in Perspective’, Asian Human Rights Commission <www.humanrights.asia/resources/
journals-magazines/article2/special-report-inexistent-rule-of-law-in-bangladesh/04-2/>
accessed 29 May 2023.
70 ibid.
71 Halim (n 21).
72 Ahmed (n 2) 55.
73 Transparency International Bangladesh, ‘Parliament Watch, Eleventh Parliament (1st to
5th Sessions; January-December 2019)’ (TIB, Dhaka, September 2020) 17 <https://www.
ti-bangladesh.org/articles/story/6329>.
74 The Appointment of Chief Election Commissioner and Other Election Commissioners Act
2022 (Act No. 1 of 2022).
75 ibid sections 5 and 6.
The government refused to pass such a law until December 2021,76 but it sud-
denly changed its mind in early January 2022. In late January 2022, the Bill
passed in a lightning speed and without adequate deliberation.77
The absence of democracy within political parties has also muted the MPs in
parliamentary questions and debates.78 Though regularly asked and answered,
the parliamentary questions fail to touch upon key accountability issues of the
government and bureaucracy,79 and successive parliaments invariably failed in
criticising government policies and actions.80
An additional impact of the lack of intra-party democracy has been the
excessive entanglement of Bangladeshi MPs in the local government afairs,
which has resulted in misgovernance at the local level and a low standard in
their legislative and scrutiny roles in parliament.81 A good explanation of this
tendency is that of Nizam Ahmed, who argues that the mutual interests of the
MPs and their party high commands shape the MPs’ constituency works.82 By
localising the MPs, the government contributes to downgrading the quality
and quantity of its legislative and oversight functions and achieving a practical
immunity from parliamentary scrutiny. In return, the government compen-
sates the MPs by allowing them wide control over local afairs.83 It is easier to
dominate the elected local government bodies through another set of elected
representatives, the MPs, than trying to do it through the bureaucracy. Locali-
sation helps the government centralise its power and suppress the elected local
government bodies.84 It is also necessary for efcient handling of the opposi-
tion. The ruling parties cannot rely only on the administration and the police
forces to tackle the destabilising tactics of the opposition. Rather, an alert and
powerful MP at the local level ensures that hard-line resistances do not arise
from the bottom. It leaves the government and the police to focus more on
the opposition activities and resistance in the capital city, Dhaka.85 MPs also
benefit in significant ways. Unlike in the UK, where constituency units of the
76 Partha P Bhattacharjee and Mohiuddin Alamgir, ‘EC Formation: Chance of a Law Slim’, The
Daily Star (Dhaka, 23 December 2021) <www.thedailystar.net/news/bangladesh/politics/
news/ec-formation-chance-law-slim-2923456> accessed 29 May 2023.
77 Staf Correspondence, ‘EC Formation Bill Placed in JS Amid Opposition’, The New Age
(Dhaka, New Age, 23 January 2022) <www.newagebd.net/article/160752/ec-formation-
bill-placed-in-js-amid-oposition> accessed 29 May 2023.
78 Ahmed S Hoque, ‘Accountability and Governance: Strengthening Extra-Bureaucratic Mecha-
nisms in Bangladesh’ (2011) 60(1) Int’l J of Productivity & Performance Management 59, 68.
79 Salahuddin Aminuzzaman, ‘Institutional Processes and Practices of Administrative Account-
ability: Role of Jatya Sangsad in Bangladesh’ (1993) 10(2) South Asian Studies 44, 55.
80 Rahman (n 30) 47–48.
81 N Ahmed, T Ahmed, and M Faizullah, Working of Upazila Parishad in Bangladesh: A Study
of Twelve Upazilas (UNDP Dhaka 2011).
82 Nizam Ahmed, ‘Parliament and Poverty Reduction in Bangladesh: Role of the MP’ (2018) 25
(1–2) South Asian Survey 163, 179.
83 ibid 178.
84 The Constitution (n 48), arts. 59 and 60.
85 Ahmed (n 82) 180.
parties play a decisive role in candidate selection, party leaders in Bangladesh

often impose their candidates upon the local units.86 Given the context, the
incumbent MPs need to maintain a strong hold over the local party units so
that strong leadership contenders do not rise to prominence.87
Illiberal bipartisanship and the suppression of parliamentary

opposition
Bangladesh has utterly failed to uphold the core Westminster norms of bipar-
tisanship and institutionalised opposition. Bangladesh’s parliamentary system
is excessively harsh to the opposition.88 As Ahmed observes, “Unlike other
democratic systems, where the opposition is at least listened to, if not always
consulted, the government in Bangladesh generally look[s] upon the opposi-
tion with suspicion”.89
Although the power has been alternated several times between the country’s
two major political parties, AL and BNP, the potential of liberal-conservative
bipartisanship has sufered a setback due to the historical distrust between the
two parties and the personal antagonism between their leaders.90 A historical
evaluation of the Bangladeshi parliament reveals that there have been at least
four modes of parliamentary opposition: no opposition, marginal opposition,
strong but disruptive opposition, and domesticated opposition.
The first (1973–1975) and sixth (February–June 1996) parliaments had
practically no opposition.91 In the first parliament, only seven opposition and
independent members were elected to the three-hundred-members’ body. In
the sixth parliament, only eleven opposition and independent members were
elected. The second (1979–1981), eighth (2001–2006), and ninth (2009–
2013) parliaments saw some marginal opposition. The numerical majorities of
the ruling parties in those parliaments were absolute.92 The second parliament
had ninety-three opposition and independent members elected. The eighth
parliament saw only ninety opposition and independent members, while the
ninth had only forty-three opposition and independent members.
On the other hand, the third (1986–1988), fifth (1991–1996), and seventh
(1996–2001) parliaments saw a very strong opposition presence. However,
the ruling parties denied the opposition parties their rightful participation in
86 Ahmed (n 2) 34, 59–61.

87 Zahir Ahmed, ‘From Shape Shifting to Collusion in Violence: An Ethnography of Informal
Relationships between Bangladeshi Members of Parliament and Their Constituents’ (2019)
42(1) Legal & Poll Anthropology Rev 5, 6–7; Ahmed (n 82) 169.
88 Mohammad M Khan and Syed A Husain, ‘Process of Democratisation in Bangladesh’ (1996)
5(3) Contemporary South Asia 319, 331
89 Ahmed (n 47) 90.
90 Elora Shahabuddin, ‘Bangladesh in 1999: Desperately Seeking a Responsible Opposition’
(2000) 40(1) Asian Survey 181,185.
91 Ahmed (n 29) 31–32.
92 ibid.
the parliamentary process.93 The opposition parties also showed excessively

disruptive tendencies, boycotted the parliaments, and resorted to street agita-
tion and violence.94 The third parliament had 147 opposition and independent
members elected. The military ruler was uncomfortable with this and dis-
solved it within two years of its election. The fifth parliament had 142 elected
opposition and independent members. Three years into its tenure, the oppo-
sition parties resigned and staged violent political agitations demanding the
introduction of a non-partisan caretaker government. The seventh parliament
had 122 opposition and independent members elected. They boycotted the
parliament consistently and preferred street agitations. Absenteeism in the sev-
enth (1996–2001), eighth (2001–2005), and ninth (2009–2013) parliaments
were 43 percent, 60 percent and 75 percent, respectively.95
The fourth (1988–1990), tenth (2014–2018), and eleventh (2019-current)
parliaments saw the presence of what is called domesticated opposition. These
opposition parties have been the ruling party allies who filled the vacuum
created by the main opposition parties who boycotted the elections. In the
fourth parliament, a so-called Combined Opposition Party coalesced hurriedly
at the behest of the president, participated in the election boycotted by the
mainstream opposition parties, got elected in some seats, and then played the
dummy opposition’s role in the parliament. In the tenth parliament, the ruling
party’s coalition partner JP contested the election boycotted by all other major
parties, got elected in some seats that were left uncontested by the ruling
party, and then took ministerial positions within the cabinet. JP plays a similar
role in the current eleventh parliament, with only six members elected from
the actual opposition party – BNP – in the controversial election of December
2018.96
Conclusion
Despite parliament’s many institutional failures, fifty years of parliamentary
politics have witnessed occasional resilience from the backbench. In a rare
show of parliamentary assertiveness, the ruling party backbenchers of the fifth
parliament joined the opposition to force the government to rethink its policy
decisions at least on two occasions,97 once when they refrained from voting
93 Shahabuddin (n 90) 185; Nizam Ahmed, ‘From Monopoly to Competition: Party Politics
in the Bangladesh Parliament (1973–2001)’ (2003) 76(1) Pacific Afairs 55; M Moniruz-
zaman, ‘Parliamentary Democracy in Bangladesh: An Evaluation of the Parliament during
1991–2006’, (2009) 47(1) Commonwealth & Comp Politics 100.
94 Ahmed (n 20).
95 Rounaq Jahan and Inge Amundsen, The Parliament of Bangladesh: Representation and Ac-
countability (Centre for Policy Dialogue and Chr. Michelsen Institute 2012) 54.
96 Ali Riaz, ‘Bangladesh: From an Electoral Democracy to a Hybrid Regime (1991–2018)’ in
Voting in a Hybrid Regime: Explaining the 2018 Bangladeshi Election (Palgrave Macmillan
2019) 21–31.
97 Ahmed (n 22).
for the party’s controversial presidential candidate98 and, second, when they
insisted that the prime minister respect her electoral promise of restoring the
parliamentary system in 1991.99
The parliamentary committee system has witnessed a limited consolidation,
due mainly to the increased pressure from international donor agencies and
development partners100 and the prime minister’s ex-gratia concession.101 Until
the fifth parliament (1991–1996), these ministerial standing committees were
confined to scrutinising relevant Bills. After a 1992 amendment to the parlia-
ment’s Rules of Procedure (RoP), these committees got a scrutiny power over
the administration and policies of the ministries.102 Parliamentary committees
now broadly shadow the ministries and departments of the government.103
Until the ninth parliament, the committees were not formed until the lapse of
a significant portion of its tenure.104 However, the ninth (2009–2013), tenth
(2014–2018), and eleventh (2019-present) parliaments constituted the com-
mittees within the first session.105
A revision of the RoP in June 1997 also ensured that ministers would not
chair the committee on their ministry. Ministers now remain in the commit-
tees as ex ofcio members. However, there is an apprehension that even the ex
ofcio membership of the ministers negatively impacts the committee agenda,
deliberation, and decisions. Ministers being the influential frontbench mem-
bers of the ruling party, chairs of the committees are unlikely to be too asser-
tive against them. It has long been proposed that ministers’ membership be
scrapped, and they go to the committees only when invited for questioning.
Pending the proposition, the tenth and eleventh parliaments have appointed
senior party leaders and former ministers as the chairs of parliamentary com-
mittees. If continued, the practice would benefit the committee system by
drawing from the chairs’ expertise and political superiority over the minis-
ters.106 Also, until the ninth parliament, the ruling parties used to claim the
98 Ahmed (n 25) 233. The government’s pick barely escaped a defeat at the hand of the opposi-
tion candidate.
99 See Nizam Ahmed, ‘Parliamentary Politics in Bangladesh’ (1994) 32(3) J of Commonwealth
& Comp Politics 364, 375; Zillur R Khan, ‘Bangladesh in 1992: Dilemmas of Democratisa-
tion’ (1993) 33(2) Asian Survey 150.
100 ATM Obaidullah, Institutionalization of the Parliament in Bangladesh A Study of Donor
Intervention for Reorganization and Development (Palgrave Macmillan 2019).
101 M Jashim Ali Chowdhury, ‘Working and Impact of Parliamentary Committees in the UK
and Bangladesh: A Theoretical Analysis’ (2021) 32(2) Dhaka U Law J 175, 194.
102 The Constitution (n 48) art 76(2)(c); Rules of Procedure (n 56) rr 246–248.
103 Ahmed (n 20); Taiabur Rahman, Parliamentary Control and Government Accountability in
South Asia: A comparative Analysis of Bangladesh, India and Sri Lanka (Routledge 2008).
104 Jalal Firoj, ‘Forty Years of Bangladesh Parliament: Trends, Achievements and Challenges’
(2013) 58(1) Journal of the Asiatic Society of Bangladesh (Humanities) 83; Alam and Teicher
(n 46); Ahmed (n 94) 68–69.
105 Chowdhury (n 58).
106 ibid.
most committee chairs. Appointment of opposition members to the chair

had been rare.107 Since the ninth parliament, chairs are now being distributed
among the parties on a pro-rata basis,108 and a lawmaker from the opposi-
tion party in the current parliament (2019-present) now chairs the Public Ac-
counts Committee.109
Despite these symbolic developments in the committee system, the parlia-
ment’s overall contribution has remained limited. It continued to work within
an environment of competitive authoritarianism110 and dictatorial party lead-
ership.111 While the Constitution accommodates the core values of democratic
accountability, such as the presence of a symbolic head of state with a cabinet
responsible to parliament, an institutionalised opposition, and a mandate for
free and fair periodic elections, the failure of principled liberal-conservative
bipartisanship and the emergence of an overtly clientelist party system have
laid bare the limitations of the constitutional design of parliamentary system.
The ruthless partisan drives for perpetual power have hijacked Bangladesh’s
electoral institutions and processes.112 In general, the parliament’s electoral-
democratic legitimacy has been doubtful and its vertical accountability to the
people questionable.113 The clique of intellectual and political elites posited at
the helm of public power through a farcical electoral process has difused the
Westminster system’s chain of the democratic delegation from electors to the
ruling parties.114 Given this paradox of constitutional design and its political
mishandling, the institutional value that the parliament of Bangladesh carries
within the body politic remains extremely marginal.
107 KM Mahiuddin, The Parliamentary Committee System in Bangladesh: An Analysis of Its

Functioning (PhD Thesis, Ruprecht-Karls-Universität Heidelberg 2009) 104–106.
108 Ahmed (n 47) 85–88.
109 Calls for appointing the chairs of Public Accounts, Public Undertaking, and Estimate Com-
mittees from the opposition parties have been old calls.
110 Shelley Feldman, ‘Bangladesh in 2014: Illusive Democracy’ (2015) 55(1) Asian Survey 67.
111 M Ehteshamul Bari, ‘The Incorporation of the System of Non-Party Caretaker Government
in the Constitution of Bangladesh in 1996 as a Means of Strengthening Democracy, Its De-
letion in 2011 and the Lapse of Bangladesh into Tyranny Following the Non-Participatory
General Election of 2014: A Critical Appraisal’ (2018) 28(1) Transnational Law & Contem-
porary Problems 27.
112 Nizam Ahmed, ‘Critical Elections and Democratic Consolidation: The 2008 Parliamentary
Elections in Bangladesh’ (2011) 19(2) Contemporary South Asia 137, 149.
113 Riaz (n 34).
114 Robert Blackburn, ‘The Future of UK Constitutional Law’, in Xenophon Contiades and
Alkmene Fotiadou (eds.), The Routledge Handbook of Comparative Constitutional Change
(Routledge 2020) 374.
10 Political parties in the process
of constitution-making and
amending
From multi-party to one-party
dominant politics?
Nizam Ahmed
Introduction
A constitution is a living document, which must be amenable to change de-
pending on the variables in its context or operation. In most democracies,
there are limits to amending the constitution to ensure that it is not altered
to satisfy the political gains of a single person or a coterie of persons or a
regime. Yet, in Bangladesh, military interventions and usurpation of power
have brought major constitutional changes not contemplated in the founding
Constitution. As Hakim argues:
[A constitution] really matters as long as the forces within the society are
willing to obey it. But instances abound around the globe to substantiate the
argument that the constitution is the supreme law of the land only so long
as it is honored as the supreme law by actors and institutions of a country.1
In countries such as Bangladesh, constitutional changes by martial law statutes

or regulations are as common as the regular amendment process led by politi-
cal parties in a democracy.
There is consensus among political scientists that parties are indispensable
for constitutional rule. Political parties provide the foundation of democracy,
allow citizens to participate in the political process, and help make the gov-
ernment accountable. They are an intermediate structure lodged between
the citizens and the government and are capable of influencing and being
influenced by factors as diverse as the preference of the electorate, the be-
haviour of other parties, their internal structures, and the system in which
they operate.2 Political parties perform several functions such as organising
public opinion, recruiting workers, training people in the art of leadership,
1 MA Hakim, The Changing Forms of Government in Bangladesh (Institute of Parliamentary

Studies 2001).
2 SB Wolinetz, Parties and Party Systems in Liberal Democracies (Routledge 1988).
DOI: 10.4324/9781003276814-13
162 Nizam Ahmed
articulating party demands, and communicating these demands to the centers

of governmental power.3
The presence of a strong party system is undeniably necessary for strength-
ening democratic rule. However, although pervasive, parties are still not
constitutionalised in many countries of the world. Moreover, the constitution-
alisation4 of parties may vary from one democracy to another.5 The need for
the constitutionalisation of parties arises from several factors. A central task
for modern constitutionalism is to seek to preserve and sustain ground rules
of political competition that enable parties to compete for political power on
fair and appropriate terms.6 This is particularly needed to check that the big
or ruling parties do not adopt any abusive means to gain political benefits in
a constitutional system. This is intended to provide equality of opportunity to
diferent parties and, in particular, to ensure that parties behave and act in an
accountable manner.
While the constitutional system of Bangladesh is based on multi-party
politics, the extent to which parties are constitutionalised is a debatable is-
sue. It can be said that the political parties in Bangladesh are inadequately
constitutionalised. Whether or not constitutionalised fully, the political
parties in Bangladesh were the key forces in making the founding Consti-
tution and enacting constitutional amendments, despite the fact the mili-
tary or extra-constitutional governments changed the Constitution several
times.
The success or otherwise of reform processes in generating and amending
constitutions that reflect the people’s ideals and are considered legitimate by
ordinary citizens depends to a large extent on the functioning of political par-
ties. Concerning constitution-making or amending, what makes parties indis-
pensable is that they are involved in almost every area of constitution-making
activity, from raising awareness to collecting and balancing views from society
at large and party members, and from communicating party positions on key
reform issues to electing party representatives to participate in the reform, and
so on. In modern constitutionalism, parties remain the key force in shaping,
directing, and influencing every sphere of activities involved in the creation
and amendment of constitutions.
3 GA Almond and JS Coleman (eds), The Politics of the Developing Areas (Princeton University
Press 1960).
4 Constitutionalisation of parties does not imply that every aspect of party behaviour should be
regulated. While broad aspects of rules governing the parties may find a place in the constitu-
tion, detailed regulations may be found in other laws.
5 The intensity of constitutionalisation is measured mostly by the frequency with which the
words “party” or “parties” appear in the constitution. See IV Biezen and G Borz, ‘Models of
Party Democracy: Patterns of Party Regulation in Post-War European Constitutions’ (2012)
4(3) European Political Science Review 327–359.
6 See RH Pildes, ‘Political Parties and Constitutionalism’ in Tom Ginsburg and Rosalind Dixon
(eds), Comparative Constitutional Law (Edward Elgar Publishing 2011) 254.
Political parties in the process of constitution-making 163
The main objective of this chapter is to explore the role of political parties
in the making of the Constitution and its amendments in Bangladesh. The
Constitution, which was framed in 1972, has undergone seventeen amend-
ments in the last fifty years, averaging one amendment every three years. Two
amendments (5th and 6th) were made by the military government of Zia7 and
four amendments (7th to 10th) were made by the government of General
Ershad.8 Other amendments (1st to 4th, and 11th to 17th) have been initi-
ated by party-led governments. This chapter focuses mostly on the 12th, 13th,
14th, and 16th constitutional amendments, exploring how diferent contend-
ing political parties have sought to influence the outcomes. The chapter starts
by examining the position of political parties under the Constitution of Bang-
ladesh and then proceeds to analysing the role of parties in the process of
constitution-making and constitutional amendments in Bangladesh.
Parties and the Constitution in Bangladesh:

relations (re)defined
The Bangladesh Constitution does not explicitly refer to political parties,
except for two instances. Article 152 defines a political party as a group or
combination of persons who operate within or outside parliament under a
distinctive name and who hold themselves out to propagate a political opinion
or engage in any other political activity.9 On the other hand, article 70 men-
tions “the political party” when laying down the anti-defection rule. Article
70 restricts the role of members of parliament to that of a party delegate, not
a trustee. It stipulates that a person elected as a member of parliament at an
election at which he was nominated by a political party shall vacate his seat if
he resigns from that party or votes in parliament against that party.10
There are not many pieces of legislation intended to regulate the activities of
parties in Bangladesh. The basic law regulating the activities of political parties
in Bangladesh is the Representation of People Order 1972 (hereafter “RPO”),
which did not undergo any notable or major changes in the first three decades
7 The 5th Amendment (spearheaded by Zia in 1979 through the second parliament) was en-
acted with a view to legitimising the activities of Mustaq, Sayem, and Zia governments un-
dertaken between August 1975 and 6 April 1979. The Constitution (6th Amendment) Act
1981 (10 July 1981), sponsored by the Sattar government, sought to authorise the then
Vice-President Sattar’s assumption of presidency upon Zia’s assassination.
8 The Ershad amendments were intended for diferent purposes. While the 7th Amendment
was intended to legitimise his “illegal” regime/activities, the other amendments were passed
for several purposes ranging from declaring Islam as state religion and decentralisation of
the higher judiciary (8th Amendment) and modalities for the election of the vice-president
(9th Amendment) and to extend the term of reserved seats for women in parliament (10th
Amendment).
9 See art. 152 of the Constitution of Bangladesh.
10 ibid art. 70.
164 Nizam Ahmed
of independence.11 The non-party caretaker government (NPCG) during the

time of emergency in 2007–2008 made some kind of revolutionary changes
in the RPO, making it compulsory for the political parties to register with the
Election Commission (EC) to become eligible to contest the elections.12
To qualify for registration, a party is required to do several things such as
severing relations with their front organisations, such as the students’ wing,
dissolving overseas units, allowing grassroot party units to have a say in the
nomination of parliamentary candidates, holding party elections regularly, and
allowing women to fill one-third of party positions at diferent levels.13 The
amended RPO also requires the parliamentary candidates to disclose some
vital information such as their educational qualifications, criminal records,
sources of income, and sources of election funds.14 The amended RPO also
disqualified loan and bill defaulters from contesting the elections. Restrictions
were now imposed on government servants, making them ineligible to contest
parliamentary elections in the first three years of their retirement.15
The amended RPO also provided for making the financial operations of the
political parties transparent. Campaign finance also came under serious scru-
tiny. The contesting parties are now required to submit their sources of cam-
paign finance and heads of expenditure within a certain period, failing which
they risk punishment imposed by the EC. The EC is empowered to cancel the
win of a candidate who breaches the election rules.16
Restricting candidature to only party members and independents was in-
tended to confine election contests among genuine candidates only. To be
an independent candidate, a contestant now has to attach with nomination
papers a list of signatures of 1 percent of voters of their constituency in sup-
port of their candidature.17 Upon election, an independent candidate can join
a registered political party. If he/she joins an unregistered political party, the
party does not achieve eligibility to get registered.18
It seems that the policy of the law is to establish and sustain a party sys-
tem that stands on par with any established constitutional democracy. The
changes made in the basic election law in 2008 were generally pro-democratic,
11 There is another statute that prohibits the establishment of a political party with the object
of propagating any opinion, or acting in a manner, prejudicial to the sovereignty, integrity,
or security of Bangladesh and requires all parties to transact through bank accounts. See the
Political Parties Ordinance 1978 (esp. sections 3 and 5).
12 Inserting Chapter VIA through the Representation of the People (Amendment) Ordinance
2008 (19 August 2008). The Ordinance was replaced by the Representation of the People
(Amendment) Act 2009 (Act No. XIII of 2009).
13 The Representation of the People Order 1972, arts. 90A-90I.
14 ibid art. 12(3a)(3b) (inserted via the 2008 Ordinance noted in note 12).
15 ibid art. 12 (1f). Previously, many civil servants contested elections immediately after retire-
ment, with some even taking retirement from service to contest elections.
16 ibid art. 91A(6c).
17 MS Hussain, Electoral Reforms in Bangladesh 1972–2008 (Palok Publishers 2012) 137.
18 The Representation of the People Order 1972, art. 90B(2).
although made during a non-political government. Several factors helped

make the change during the caretaker period. The most important factor
was probably that the country was under emergency at the time, minimising
the possibility of resistance from the major political parties to those changes.
However, the political parties largely accepted those changes when the emer-
gency was withdrawn, and the regular government was formed after the 2008
general election. In particular, the Ordinance by which the caretaker govern-
ment amended the RPO was endorsed and converted to an Act of parliament
in 2009.
Political parties and the making of the Constitution

For more than 200 years, the people of Bangladesh forming part of the Brit-
ish Indian province of Bengal (until 1947) and Pakistan (1947–1971) did not
have familiarity with constitutional rule and democracy until they emerged
as an independent nation in 1971. Whatever attempts were made during the
Pakistani days to introduce constitutional rule failed.19 Moreover, the long pe-
riod (1947–1956) that the constitution-makers in Pakistan took to accomplish
the task of providing the nation with a constitution provided a good lesson to
those charged with the making of the constitution in the newborn country,
Bangladesh.
The process of constitution-making in Bangladesh began with the prom-
ulgation of the Bangladesh Constituent Assembly Order 1972 on 23 March
1972, providing for the formation of a 430-member Constituent Assembly
(CA).20 Earlier, the government promulgated the Provisional Constitutional
Order 1972, providing for the switch over of government from a presidential
to a parliamentary system. However, unlike other countries, the CA lacked any
legislative power; it was not given the responsibility of working as a legislature.
As a result, “legislation by ordinance” remained the sole source of legislation.
No mechanism existed for making the government accountable. In the pre-
Constitution period, the country remained essentially under a one-party rule.
The members of the CA (MCAs) were required to comply with party direc-
tives, failing which they risked losing their CA membership.
The CA, in its second sitting, formed a 43-member Constitution Drafting
Committee (CDC), with Dr Kamal Hossain, the law minister, as its head. All
CDC members except one (opposition member Suranjit Sengupta) belonged
to the Awami League (AL). There were two independent members. Several
senior cabinet members were also included in the CDC. It was asked to sub-
mit the draft of the Constitution as soon as possible. The CDC spent 360
hours and held 74 meetings to prepare a draft. It asked for public submissions
19 For details, see R Jahan, Pakistan: Failure in National Integration (Columbia University Press
1972).
20 AF Huq, ‘Constitution-Making in Bangladesh’ (1973) 46(1) Pacific Afairs 59.
166 Nizam Ahmed
on diferent issues confronting the nation. No questionnaire was, however,

circulated to seek public opinion. The rate of responses from the public was
minimal. Most of the members appeared to be happy with the draft prepared
within the stipulated time. Only five members gave notes of dissent. Their dis-
sensions were mostly related to ownership of property or the concept of social-
ism. Some proposed punishment for disobeying party decisions, particularly
expulsion from the party. Several members vehemently opposed the proposal
for punishment for expulsion, and ultimately it was deleted from the text.
Now members expelled from a party can still retain their seats.
In general, the CA passed the Constitution without any serious hurdles.
Amendments moved by diferent members did not relate to core issues; as a
result, many of the proposed amendments (altogether eighty-four) were ac-
cepted. The Constitution was made with relative ease. Part of the reason was
that the CA was composed of members, almost all of whom belonged to the
AL. Following the passage of the Bill, the CA was dissolved and elections to
the first parliament were held in March 1973. The AL won 291 of the 300
seats and secured nearly 73 percent of the votes cast.21
The Constitution framed by the AL government, observed one of its ar-
dent critics, “was a full, comprehensive, and well-written document” and was
a far more “improved” document than the existing constitutions of the sub-
continent.22 Part of the reason was the leadership of Dr Kamal Hossain, the
convener of the CDC. He had long been associated with the AL and the
development of its policies. This link and his close relations with Shiekh Mu-
jibur Rahman helped him to be aware of the ground realities facing the nation
and, thus, to draft the document properly. Compared to India and Pakistan,
Bangladesh’s Constitution was written within a short time. Several factors,
particularly political homogeneity and geographic contiguity were very critical
to adopting the Constitution within such a short time.23 The bitter experience
of the past with the drafting of the 1956 Constitution of Pakistan worked,
to some extent, as a deterrent, discouraging the framers to delay drafting.
Perhaps more importantly, the CA was essentially a one-party House, and this
had negative impacts on the deliberative environment in the assembly. The
law imposed some restrictions on the independent behaviour of members of
the CA by, for example, introducing the anti-defection rule. This restriction
discouraged meaningful deliberation on the draft constitution.
Main features of the parliamentary system in the founding

Constitution
The founding Constitution provided for a parliamentary system patterned
on the Westminster model. It required the government to be collectively
21 R Jahan, Bangladesh Politics (University Press Limited 1980) 84.

22 Moudud Ahmed, Bangladesh: The Era of Sheikh Mujibur Rahman (University Press Limited
1983) 127.
23 ibid 127.
responsible to the legislature called Jatiya Sangsad. All members of the cabi-
net were members of parliament (MPs). Non-MPs included in the cabinet
were required to get elected to the JS within six months of their assump-
tion of ofce.24 The Constitution provided for the separation of powers, with
each branch organising its activities and operations independently of others.
This, however, does not imply that there were no relations among the three
branches. As stated earlier, there was some kind of fusion between the execu-
tive and the legislature. Provisions for setting up elected local governments at
diferent levels were also made.
Perhaps the two noblest features of the Constitution were, first, an absence
of the provision for preventive detention, and second, no provision for the
declaration of emergency.25 This idealistic policy did not last long; the Con-
stitution was amended soon providing for the introduction of both.26 Some
serious eforts were made to restrict the power of the president to an absolute
minimum. He was no better than a figurehead, performing almost all func-
tions on the advice of the prime minister. Article 70 restricted floor-crossing
mostly to ease government formation as well as to ensure government stabil-
ity. The absence of both restrictions on presidential power and floor-crossing
created stumbling blocks to the framing of the Constitution in Pakistan in the
early years of partition. These, however, acted as a deterrent against the bal-
anced growth of parliamentary democracy in independent Bangladesh.
Jahan, however, argues that the AL did not introduce a Westminster-style
government; rather, it was the Indian model of parliamentary democracy with
a single dominant party.27 The main features of the Indian model followed by
the AL were: the parliamentary system, single-dominant party, socialist ideol-
ogy, and secular ideology. There were two diferent views within the AL in the
early days of independence on the system of government, with the old guards
reiterating their commitment to the British model, while some radicals were in
favor of a revolutionary government with Mujib exercising the reign of state
power in an absolute manner.28 The repudiation of the parliamentary model
in less than two years (in 1975) implied a lack of strong commitment to it by
the top party leadership.
The AL, like the Indian Congress (INC) in the early years of partition,
emerged as a dominant party in elections held in 1970 (immediately before
liberation) and in 1973. As in India, the political opposition was in a disarray;
the opposition parties were seriously disorganised. The AL won almost all of
the seats in both elections. However, unlike in India where the ruling INC
sought to nurture the opposition to help it play its due role in the political
system, the Awami League leaders used force to wipe out the opposition.
24 Ahmed (n 22) 104–105.

25 ibid 130.
26 ibid.
27 Jahan (n 21) 97.
28 ibid 100.
168 Nizam Ahmed
Election results were reversed in a few constituencies where the opposition

candidates were likely to win. As Jahan observes:
The AL campaign strategy [was] to win all seats in Parliament indicated

the party’s determination to have a single dominant party system. This
drive to win monopoly control of political power necessarily resulted in
an intolerant attitude towards opposition parties and opposing views.
The strategy paid of and made the AL the dominant party, but it also
created the ethos of a single-party system.29
The experimentation with the parliamentary democracy/Indian model of

government did not last long. In less than two years of the formation of the
new government in 1973, Prime Minister Sheikh Mujibur Rahman decided
to replace the multi-party parliamentary system with a one-party presidential
system. All political parties were banned, and a new party called Bangladesh
Krishak Sramik Awami League (called BAKSAL) was established.30 In January
1975, the AL government moved a constitutional amendment Bill, providing
for constitutional change. Although the fundamental principles of state policy
remained untouched by the resultant 4th Amendment, fundamental rights
were again suspended.31 The president was armed with executive, legislative,
and judicial powers to such an extent that, should he want, he could easily
declare himself “the state”. The president could refuse assent to Bills passed by
the parliament. He also appointed and removed judges of the highest court at
his discretion and headed the national party (BAKSAL), selecting its leaders at
diferent levels at his will.
This drastic constitutional change was critiqued strongly by scholars. Jahan
thinks that the reasons for the adoption as well as repudiation of the parlia-
mentary system were the same: the consolidation of power by the ruling party.
She argues as follows:
The nationalist elites became committed to the model of parliamentary

democracy because the promise of increased participation was a pow-
erful slogan to mobilize mass support behind the nationalist move-
ment . . . Increased participation not only resulted in greater demands
on the system; it also meant that the nationalist elite could be replaced
by alternative leadership . . . The elite rejected parliamentary democ-
racy and turned to an alternative model which promised a longer stay in
power. Thus, both the adoption as well as repudiation of constitutional
democracy as a model of government and politics were due to power
consideration.32
29 ibid 103.
30 On this aspect, see Chapter 8 in this volume.
31 The Constitution (4th Amendment) Act 1975.
32 Jahan (n 21) 97.
However, before the new one-party system could have a real beginning, it was
replaced by the military era that indeed commenced with the brutal assassina-
tion of Sheikh Mujibur Rahman on 15 August 1975. The new government
declared martial law and abolished the BAKSAL. The parliament was abol-
ished in November 1975.
The constitutional amendment, the two-party system, and

democratic development
Between 1975 and 1990, the county remained under absolute military rule for
eight years: from 1975 to 1979 under General Zia, and from 1983 to 1987,
under General Ershad. Both adopted almost similar strategies to civilianise
their rule, among other things, by creating political parties – Bangladesh Na-
tionalist Party (BNP) by Zia and Jatiya Party (JP) by Ershad – and holding
elections to the parliament and the presidency. Zia was, however, assassinated
while in ofce (as the president) in 1981. On the other hand, Ershad was
forced to hand over power to Justice Shahabuddin Ahmed, then sitting chief
justice, in December 1990.
A mass upsurge against the Ershad regime took place in November–
December 1990. Ershad declared a state of emergency and made a last-ditch
efort to survive in power. He desperately looked upon the military, his main
support base throughout his long tenure as the head of the government,
for support, but failed. The three alliances of political parties which kept Er-
shad under surveillance and pressure since 1986 – an eight-party alliance of
“left-of-centre” forces led by AL, a seven-party alliance of “centrists” led by
BNP, and the “leftist” five-party alliance – adopted a series of strategies to
force him to step down.33 Initially, the three alliances were divided and could
not agree on a common strategy to force Ershad down. However, follow-
ing the formation of the All-Party Students Unity (APSU), a conglomerate
of student organisations afliated with the major opposition parties, to exert
pressure upon the Ershad government to resign, the main parties found it
difcult to follow a “go alone” policy. In November 1990, the three alliances
announced a joint declaration, specifying the modalities for the transfer of
power. The modus operandi of the joint declaration was: Ershad will be forced
to resign and an interim caretaker government (CTG) will be formed under a
vice-president acceptable to the three alliances to ensure the holding of a free
and fair election to a sovereign parliament within three months. The head of
the CTG as well as the other ministers were to be nonpartisan, neutral, and
barred from participating in elections. The role of CTG would be limited to
routine administration, reconstituting the Election Commission to hold free
33 For details, see MA Hakim, Bangladesh Politics: The Shahabuddin Interregnum (University
Press Limited 1993).
170 Nizam Ahmed
and fair elections, and ensuring freedom of the mass media so that all parties
participating in elections would get unhindered chances for publicity.34
Upon Ershad’s resignation on 6 December 1990, Chief Justice Shahabud-
din Ahmed took the charge as president and formed a government composed
of ten people who were not associated with any political party. He adopted a
series of measures to hold the fifth election in a free and impartial manner.35
Since the government lacked a partisan agenda, it did not want to influence
the electoral process. There was widespread consensus that the CTG of Sha-
habuddin Ahmed ensured a level playing field for diferent parties contesting
the elections. As a result, elections were widely acknowledged to have been
held in a free, fair, and impartial manner. The willingness of the parties con-
testing the polls to abide by the rules was also an important factor. Elections
to the fifth parliament were held in February 1991. The BNP, which won 140
seats, formed the government in March 1991 with the conditional support of
the Jamaat-e-Islami Bangladesh (JIB). The AL emerged as the main opposi-
tion in the fifth parliament (1991–95).36
The opposition, as well as government backbenchers in the fifth parliament,
played a major proactive role in resolving many contentious issues. Perhaps the
most important of the issues resolved was the system of government to be fol-
lowed in the country. Substantial disagreements existed over the form of gov-
ernment between 1975 and 1991, with the BNP seeking to retain the then
existing presidential system, while the AL pledged to restore the parliamentary
system before the fifth election. Following the inauguration of the fifth parlia-
ment, the AL submitted a private members’ Bill providing for the abolition of
the then presidential system and the reintroduction of the parliamentary system.
Some other smaller parties also submitted Bills providing for similar changes.
The then ruling BNP was initially opposed to any change in the form of
government, with some senior ministers even arguing that since the presiden-
tial system had served the country well, it should be retained. Unlike the AL,
JIB, and several other smaller parties which pledged to reintroduce the parlia-
mentary system (before the elections), the BNP remained silent on the issue
(the form of government) during the election campaign. It only observed that
the issue would be resolved by the “sovereign” parliament once it was elected.
Following the submission of the bill by the AL, BNP convened a meeting of its
parliamentary party apparently to gauge the opinion of the government back-
benchers on the opposition proposal. An absolute majority of government
backbenchers present in that meeting favoured the parliamentary system, al-
though the Constitution of the Republic (as well as the party constitutions)
still provided for a presidential system. The BNP convened a meeting of its
standing committee, ostensibly the highest policy-making body of the party,
34 ibid 128–130.
35 ibid 41–66.
36 Nizam Ahmed, The Parliament of Bangladesh (Ashgate 2002).
which decided in favour of the parliamentary system. A meeting of the BNP’s

parliamentary party was convened in June 1991. Once again, most govern-
ment backbenchers demanded that the parliamentary system be reintroduced.
Thereafter, the BNP government decided to move the Constitution (12th
Amendment) Bill, providing for a switchover to the parliamentary system.37
The two Bills, sponsored respectively by the BNP and the AL, agreed on
the basic principles: both provided for restoring the parliamentary system of
government. The diferences between the two are centered mainly on the pro-
vision seeking to restrain floor-crossing, the mode of election of the president
under a parliamentary system, and the appointment of non-MPs as ministers.38
AL members resented the provision for a referendum on the amendment of
some provisions of the Constitution. However, following the scrutiny of these
Bills by a select committee composed of representatives of the treasury and op-
position benches, a consensual Bill was introduced in the House. It was subse-
quently passed in early August 1991 and following a referendum on the Bill39
in September 1991, the parliamentary system was thus restored. Earlier to this
change, the fifth parliament passed the Constitution (11th Amendment) Act
1991 (in August), legalising the actions taken by the Shahabuddin govern-
ment from 6 December 1990 and allowing President Shahabuddin Ahmed
to resume the responsibilities of the chief justice of Bangladesh after handing
over the charge of the presidency to his successor.
The restoration of the parliamentary system based on consensus repre-
sented the first formal government-opposition parliamentary collaboration in
Bangladesh’s history. No such example has been repeated since then. On the
contrary, the two main parties have since then considered each other as adver-
saries, to be precise, enemies. One has always tried to expand at the expense
of the other. There was limited scope for partisan mutual adjustment. It is
to be mentioned here that notwithstanding the general recognition that the
CTG provided a better alternative to a party government in holding elections
to the parliament, there was no serious attempt in the initial years of the fifth
parliament to institutionalise the innovation of the CTG. Neither the BNP –
the ruling party, nor the AL – the main opposition – showed any interest in
this respect. Nor was there any public demand for such an arrangement. The
JP opposed the concept of caretaker government since its inception. The JIB
was, however, an exception. Its parliamentary party leader, Motiur Rahman
Nizami, submitted a private members’ Bill in August 1991, seeking a perma-
nent arrangement for holding all future parliamentary elections under a CTG.
The Bill proposed that the prime minister (PM) would resign on the day the
election schedule would be announced. Following the PM’s resignation, the
president would form an advisory council with a senior adviser as its head.
37 For details, see Ahmed (n 36).

38 See Hakim (n 33).
39 In accordance with the then art. 142 of the Constitution of Bangladesh.
172 Nizam Ahmed
The Bill further provided that those to be included in the council would not
belong to any political party. Nor would they contest the election. The council
would automatically stand dissolved after the elected cabinet took over the
charge of the government.40
The main parties also did not take notice of the JIB Bill for CTG for more
than two years since its submission to the Parliament Secretariat in August
1991. AL and JP, however, changed their mind towards the end of 1993
when they submitted separate Bills for the CTG. The AL Bill was submitted
by Abdur Rahim on 28 October 1993. It considered the Shahabuddin CTG
as a model. The Bill, thus, provided for a caretaker government to be headed
by the (incumbent) chief justice to oversee the conduct of parliamentary elec-
tions.41 The other provisions in the Bill were similar to the JIB Bill. The JP Bill,
submitted in mid-November 1993, by Monirul Hoque Chowdhury, provided
that the president would appoint at his discretion anyone as the head of an
interim government after the incumbent PM resigned following the dissolu-
tion of the parliament.42
The Bills submitted by the AL, JP, and JIB had more similarities than dif-
ferences. The main diference centered on the head of the caretaker govern-
ment. While the AL bill restricted the choice of the president by requiring him
to appoint the chief justice as the head of the caretaker government, the bills
submitted by the JIB and the JP granted some discretion to him (president)
in this respect. In all other respects, the three bills incorporated the main ele-
ments of Shahabuddin’s transitory model. One thing to be mentioned here is
that the Bills on CTG did not initially receive any major publicity. Those submit-
ting the Bills also did not make any serious attempt to popularise the ideas
contained in them in the first few years of the BNP rule. But following the
widespread allegation of vote-rigging by the BNP in a Magura by-election,
the main parties decided to boycott any election under BNP and raised the
demand that all future parliamentary elections be held under CTGs.43 Herein
lies the resilience of the Shahabuddin model.
The three mainstream boycotting parties (AL, JP, and JIB) did not ini-
tially have any formal communication with each other. But they subsequently
formed an all-party committee to draft a common Bill on CTG, which was
finalised on 7 June 1994. Thereafter, the boycotting parties set a deadline for
the government to move and pass the Bill. They declared that if the govern-
ment failed to pass the Bill on CTG, they would announce the modalities of a
caretaker government. The boycotting parties announced the model of such a
40 S Babar, ‘Opposition Prepares Drafts of Caretaker Government’ (13 May 1994) 10(41)
Dhaka Courier 8.
41 ibid 8.
42 ibid.
43 For details, see Nizam Ahmed, Non-Party Caretaker Government in Bangladesh (University
Press Limited 2004) 17–20. See also Sonia Z Khan, The Politics and Law of Democratic Tran-
sition: Caretaker Government in Bangladesh (Routledge 2018).
CTG on 27 June 1994. A six-point outline was announced which, inter alia,
provided for empowering the president to appoint, in consultation with the
parliamentary opposition, a neutral person as PM. The PM would not contest
the elections and the cabinet would be composed of persons who were not
members of any political party. The existing law of the time, however, did not
bar a sitting prime minister from contesting the polls.44
The government rejected the demand outright, arguing that it was uncon-
stitutional. It also argued that a CTG could not be an alternative to an elected
government. The opposition was aware that it would not succeed in passing
the Bill without the support of the ruling party. But instead of moving a Bill
for CTG, the government passed a Bill that was aimed at strengthening the
Election Commission (EC) and ensuring a “foolproof” electoral system in the
country.45
The new law – an Amendment Act of 1994 – empowered the EC to issue
identity cards to each voter.46 Under the new law, no ballot paper would be
issued to a voter at any polling station unless he/she produced an identity card
issued by the EC before the polling ofcer concerned. The new law also em-
powered the EC to stop polls at any polling station at any stage if it was certain
that elections could not be held fairly because of malpractice.47 The opposition
did not outright reject the reform but considered it inadequate to check elec-
tion fraud and rigging. It, thus, reiterated its demand for a permanent CTG.
All opposition parties boycotted the parliament proceedings for four
months and, thereafter, resigned en masse and turned to the street, demanding
that the government enact a law for CTG. Civil society organisations and oth-
ers including think tanks in course of time supported the opposition’s demand,
hoping that it would resolve the issue of the succession of government perma-
nently. Most importantly, civil servants also at one stage decided to withdraw
support from the government and expressed solidarity with the opposition-led
movement for CTG. The opposition supporters also turned violent, causing
damage to public life and property.
The government dissolved the fifth parliament in November 1995 and held
elections to the sixth parliament in February 1996, which all opposition par-
ties boycotted. The BNP won almost all seats and moved a constitutional
amendment Bill on the day the sixth parliament was inaugurated. The Bill
was passed hurriedly and the second Khaldea Zia government resigned. The
Constitution (13th Amendment) Act 1996 introduced a neutral, non-party
caretaker government (hereinafter “NPCTG”), providing for a ten-member
NPCTG to be headed by the last retired chief justice and composed of ten
advisers who would not contest the elections and would hand over power
44 ibid 21.
45 See the Daily Star (Dhaka), 1 December 1994.
46 The Representation of People (Amendment) Act 1994.
47 ibid.
174 Nizam Ahmed
immediately after the appointment of a new PM. The caretaker government

was to exist for ninety days and would not make policy decisions; it would only
carry out routine activities of the government. Its main responsibility was to
ensure that the EC held elections to the parliament in an impartial manner and
freely and fairly.48
Following the constitutionalisation of the NPCTG, three parliamentary
elections were held between 1996 and 2008. Although those who lost the elec-
tions alleged improper behavior of the successive NPCTGs, the general public
always welcomed the results. No serious allegations of rigging and malprac-
tices in these elections have been reported by election observers. The beneficial
efects of the NPCTG have been noticed in several areas. For example, par-
liaments elected under NPCTGs were more balanced in partisan composi-
tion than those elected under party governments. During the caretaker era
(1996–2008), the BNP and AL alternated in state power. None could win
state power in succession. The voting pattern stabilised, and the rate of voter
turnout surpassed all previous records. Elections under NPCTGs have led to
the elimination of a large number of “paper” parties – those that had mush-
roomed in the past, especially during the Ershad rule.
Thus, notwithstanding their antagonistic attitude towards each other, the
dominant political parties in Bangladesh have succeeded in resolving the two
most important controversies facing the nation – the form of government and
the process of succession of government during caretaker rule. The NPCTG
system, however, did not survive long. Notwithstanding strong popular sup-
port for the system, it was dissolved in 2011 on constitutional grounds. First,
in 2010, the Supreme Court declared the system unconstitutional and, hence,
void.49 It, however, observed that should the politicians wanted, the system
could be used for two more elections.50 Following the Court’s decision, how-
ever, the AL hurriedly enacted the Constitution (15th Amendment) Act in
2011, thereby abolishing the system of NPCTG. Instead, the provision now
exists for allowing the sitting government to hold state power during elections
and without dissolving the parliament before elections. This appears to be a
retrograde step, as explained in the next section.
The abolition of caretaker government (NPCTG) and the

reemergence of the single-dominant party system
The abolition of the NPCTG system was not a unanimous one; it was AL’s
lone, exclusionary decision. In response, the BNP and its allies refused to
take part in any elections under the AL. They boycotted the tenth parliamen-
tary elections and tried to halt the holding of elections by using force. The
48 The Constitution (Thirteenth Amendment) Act 1996.

49 Abdul Mannan Khan v Bangladesh (2012) 64 DLR (AD) 169.
50 ibid (short order of the Appellate Division of 10 May 2011).
elections were held in 2014 without the participation of the BNP and other
major parties. Candidates in more than half of the seats (154) were declared
elected uncontested.51
The next parliamentary election was held in 2018 in which the BNP par-
ticipated. However, the results of the eleventh parliamentary election were
manufactured.52 It is alleged that the (AL) government used force to win the
election. Although the BNP took part in the elections, it failed miserably,
winning only seven seats and securing less than 10 percent of the votes cast.
Formally, Bangladesh now has a one-dominant party system, a system mo-
nopolised by the AL. The AL has won three parliamentary elections in succes-
sion (2008, 2014, and 2018). The opposition BNP has been marginalised to
such an extent that the present PM is not ready to recognise it even as a party.
More than once she expressed doubt in public if there was any opposition in
Bangladesh.
Herein lies the most important diference between the Indian and Bang-
ladeshi systems of the single-dominant party model. The Bangladesh leader-
ship is interested in establishing democracy without the opposition, while the
Indians adopted various measures to allow the opposition to play its due role,
especially during the Nehru years, although the current political developments
in India may be seen as probably not that diferent to the Bangladesh scenario
except for the election fairness/multi-party presence. The Indian government
largely nurtured the opposition, even to the extent of allowing its backbench-
ers to seriously probe into government operations. No such example can be
found in Bangladesh. Bangladesh has one of the most centralised party sys-
tems in the world, where almost everything is controlled by the prime minister
or the ruling party.
The 16th Amendment to the Constitution, enacted in 2016 by the cur-
rent AL regime, which provided the parliament with authority to decide
the impeachment of Supreme Court judges, could have made the top party
leadership an omnipotent authority had the Supreme Court not declared it
illegal. As long as article 70 of the Constitution (anti-defection rule) remains
in force, the PM can be assured of the votes of all of its parliamentary party
members. The amendment could have given Sheikh Hasina, the PM and AL
president, an important leeway to control the higher judiciary. Restriction on
floor-crossing exists in India, too, but it is not as absolute as in Bangladesh.
Moreover, in contrast to Bangladesh, the Indian one-dominant party system
worked in the context of democratic decentralisation. Measures were taken,
in contrast to Bangladesh, to decentralise power to governments at the sub-
national levels.
51 A Riaz, Voting in a Hybrid Regime (Palgrave Macmillan 2019).

52 A Riaz and S Parvez, ‘Anatomy of a Rigged Election in a Hybrid Regime: The Lessons for
Bangladesh’ (2021) 28(4) Democratization 801.
176 Nizam Ahmed
Critics suggest that the 16th Amendment was intended to make the higher
judiciary compliant with political wishes. When challenged in court, the
higher judiciary, in a unanimous judgment, considered the Amendment un-
lawful.53 This antagonised the government, and the ruling party and its law-
makers reacted to the verdict of the Supreme Court Appellate Division in an
objectionable manner. As a punishment, then Chief Justice Singha was forced
to resign in 2017.54 Subsequently, corruption charges were brought against
him, leading to a conviction of a few years in prison. The Constitution em-
powers judges to make whatever judgments they think are the best, although
the reality might be diferent. On the other hand, lawmakers are not inde-
pendent; they are in chains put onto them by article 70, which restricts their
freedom of action. As a natural rule, the power at the hands of parliament,
dominated by a single party and operating within the limits under article 70,
to remove a Supreme Court judge will ultimately increase the party control
over the judiciary in the peculiar political contexts in Bangladesh.
Conclusions
This chapter has tried to explore the role and behaviour of political parties in
making as well as amending the Constitution of Bangladesh. The role of the
Constitution Drafting Committee, composed exclusively of politicians, played
an extremely important role in the framing of a democratic constitution for
the nation. Some amendments to the Constitution perceived and made by
political parties led to the evolution of a consensus, in 1991 and 1996, on the
form of government and the process of succession of government through the
NPCTG. Multi-party consensus on these two basic principles held promises
for a competitive political system in the country. In addition, stability in vot-
ing patterns and party identification of the electorate became quite distinct.
But following the unilateral abolition of the caretaker government model,
much of what was gained earlier was lost. A competitive party political sys-
tem that was gradually developing during the caretaker era (1996–2008) has
now been replaced by a single-dominant party system, considered to be anti-
thetical to democracy in the Bangladeshi context. Currently, the line between
53 Bangladesh v Asaduzzaman Siddiqui (2017) 25 BLT (Special) (AD) 1. The decision is cur-
rently under a review hearing before the Appellate Division. The 16th Amendment judgment
raised an important issue of whether the Court can amend an original article of the Constitu-
tion (here, article 96 which in the original Constitution provided for parliamentary removal of
judges). On this, see Ridwanul Hoque, ‘Can the Court Invalidate an Original Provision of the
Constitution’ (2016) 2(1) U of Asia Pacific J of Law and Policy 14; MJA Chowdhury and NK
Saha, ‘Advocate Asaduzzaman Siddiqui v. Bangladesh: Bangladesh’s Dilemma with Judges’
Impeachment’ (2017) 3(3) Comp Con Law and Administrative Law Quarterly 7.
54 See SK Sinha, A Broken Dream: Rule of Law, Human Rights and Democracy (unknown
publisher) (Published on 22 August 2018; <https://archive.org/details/ABrokenDream-
RuleOfLawHumanRightsJusticeSurendraKumarSinha> accessed 29 May 2023.) PDF version
490–495.
a one-dominant party and a one-party state is very thin in Bangladesh, in

contrast to India which made it (one-dominant party) work to benefit the
majority of the people. Although India is currently on a democratic backslide,
the Indian system at the time was democratic, while the Bangladesh one is
authoritarian. This shift and, more specifically, the absence of multi-party con-
stitutional politics will make the task of continuing with, and consolidating,
the democratic system in the country extremely difcult.
Part IV
Social justice, inclusion,

and the protection of rights
11 Constitutional protection of
economic and social human
rights
Intention of the constitution-
makers and judicial interpretations
Muhammad Ekramul Haque
Introduction
The Constitution of Bangladesh has recognised human rights in diferent
forms. Civil and political (CP) rights are embodied in Part III of the Con-
stitution (articles 26–47A) as judicially enforceable fundamental rights, while
Part II (articles 8–25) contains economic, social, and cultural (ESC) rights
as judicially unenforceable fundamental principles of state policy (FPSPs).
Lengthy discussions and debates were held in the Constituent Assembly about
the judicially unenforceable nature of FPSPs. It was, in fact, one of the most
discussed issues in the Constituent Assembly. Nevertheless, article 8(2) of the
Constitution finally declared, inter alia, all fundamental principles of state
policy as judicially unenforceable.
This chapter will scrutinise the mandates of article 8(2) as to the nature of
the constitutional state principles relating to only one set of human rights –
the ESC rights – that are recognised as FPSPs. To gauge the intention of the
constitution-makers from an originalist perspective of constitutional interpre-
tation, the chapter will analyse the debates held in the Constituent Assembly
over the judicial unenforceability of FPSPs. It will also examine the scope
for the Supreme Court of Bangladesh to play a significant role in protect-
ing the ESC rights despite the purportedly clear constitutional bar against
their judicial enforceability. As this study is a qualitative one, it will largely
depend on archival research and a deeper analysis of relevant decisions of the
Supreme Court. The chapter engages an originalist interpretation of consti-
tutional provisions based on a critical examination of the relevant parts of the
Constituent Assembly debates. Analysing the position of CP rights, made
enforceable by the Constitution as fundamental rights, is beyond the purview
of the chapter.
The key conclusion of this chapter is that there is a scope for judicial enforce-
ment of economic and social rights, that is the FPSPs, based on an originalist
interpretation of the Constitution. This argument is derived from an originalist
argument of democracy, which the framers intended to be one of the four pillars
of the Constitution. It is argued that the sustainability of political democracy is
DOI: 10.4324/9781003276814-15
182 Muhammad Ekramul Haque
much dependent on the equitable economic development of the nation, where

basic economic human rights of the people are fulfilled.
Constitutional nature and functions of the FPSPs

The Constitution Drafting Committee (CDC) was formed by the Constituent
Assembly of Bangladesh and was headed by the then Minister for Law and
Parliamentary Afairs, Dr Kamal Hossain. Many discussions and debates were
held in the Constituent Assembly about the FPSPs. It was, in fact, one of the
most discussed issues in the Constituent Assembly.1
The chairman of the CDC at the time of presenting the Constitution Bill
before the Constituent Assembly mentioned in his speech that socialism, one
of the basic FPSPs, meant emancipation from economic exploitation.2 En-
trusting the state with the responsibility to emancipate the peasants, work-
ers, and toiling masses from all forms of exploitation, he confirmed that ‘the
constitution . . . guaranteed fundamental human rights.’3 It was categorically
pointed out that ‘the state also has been entrusted with the responsibility to
ensure that every citizen gets the basic things that are required for decent
living.’4 Therefore, it was indicated that the duties imposed on the state in
Part II were to ensure the citizens’ basic economic human rights. Despite
such an assurance, the enforceability of the basic economic human rights was
lacking. Manabendra Narayan Larma, the only independent member in the
Constituent Assembly, considered the protection of basic economic human
rights inadequate. He warned that ‘unless we can ensure people’s right to food
and clothing and their decent living, we can’t claim before the next generation
that we have kept a good constitution for them.’5
At the beginning of Part II of the Constitution, article 8(2) declares the
constitutional status and function of the FPSPs in the following words:
The principles set out in this Part shall be fundamental to the govern-
ance of Bangladesh, shall be applied by the State in the making of laws,
1 The Constitution Bill was tabled before the Constituent Assembly for consideration on 19 Oc-
tober 1972 and the general discussion on the Bill continued till 30 October 1972. See the
Bangladesh Constituent Assembly Debates (Gono Parishader Bitarka, Sarkari Biboroni), (Con-
stituent Assembly 1972). This discussion has been compiled in the Bangladesh Constituent
Assembly Debates (ibid 102–442), which included, inter alia, the discussion on the matter of
the fundamental principles of state policy (ibid 122–123, 147–150, 154, 156–157, 161, 185,
196–197, 221–226, 236, 250, 259–262, 264–270, 280–283, 291, 293, 305, 309, 322–323,
325, 325–327, 333–334, 349, 353, 355, 357–358, 370, 372, 377–378, 384, 386–387, 391,
397, 399, 406, 408, 409–410, 413–414, 421, 435, 437, 439, 441–442).
2 ibid 24.
3 ibid (translation is of the author).
4 ibid.
5 ibid 110.
Constitutional protection of economic and social human rights 183
shall be a guide to the interpretation of the Constitution and the other

laws of Bangladesh, and shall form the basis of the work of the State and
its citizens, but shall not be judicially enforceable.
In article 8(2), four positive features along with one negative feature are at-
tributed to the FPSPs, which together determine the constitutional status,
nature, and functions of the FPSPs. These features of the FPSPs can be classi-
fied under the following headings: relevance for the governance of Bangladesh,
application in making laws, a guide to interpretation, basis of all works within
the state, and judicial unenforceability (the latter being the negative feature).
The great importance of the FPSPs is that they put the state under an obliga-
tion to take positive actions towards ensuring the economic human rights of the
citizens.
The FPSPs have a significant role to play in the interpretation of all laws
including the Constitution itself, as these principles are mandated to ‘be a
guide to the interpretation of the Constitution and the other laws of Bang-
ladesh’ (article 8(2)). Thus, in interpreting the Constitution or any other
laws, the court is constitutionally obliged to be guided by the FPSPs. For
example, the court in Aftabuddin v Bangladesh6 interpreted article 116 of
the Constitution (concerning control and discipline of subordinate court
judges and magistrates) in light of article 22 (the principle of separation
of judiciary from the executive), an FPSP.7 A clear provision of law or the
Constitution cannot be transformed to an entirely diferent meaning by the
use of FPSPs. However, the terms ‘judicial enforcement’ and ‘judicial inter-
pretation’ must be distinguished carefully. The Constitution has given the
mandate to use the FPSPs in ‘judicial interpretation,’ but ‘judicial enforce-
ment’ of the FPSPs has been prohibited. For example, the Appellate Division
of the Supreme Court of Bangladesh in Kudrat-E-Elahi Panir v Bangladesh8
employed articles 9 and 11 (two FPSPs) as an aid in interpreting articles 59
and 60 (constitutional provisions regarding local government). The High
Court Division in Winifred Rubie v Bangladesh9 provided an interpretation
of the term ‘public purpose’ by referring to certain FPSPs. In Winifred Ru-
bie, where the public nature of a school’s functions was at issue, the Court
‘noted that the school did not conform to the national educational policy
and was not recognised by’ the relevant government agency, and, ‘having re-
gard to the principles of State policy stated in articles 14, 17 and 19(1), held
that the school could not be categorised as serving a “public purpose.”’10
6 (1996) 48 DLR (HCD) 1.

7 ibid 11, per Naimuddin Ahmed J.
8 (1992) 44 DLR (AD) 319, 336–337.
9 (1981) 1 BLD (HCD) 30.
10 Mahmudul Islam, Constitutional Law of Bangladesh (2nd edn, Mullick Brothers 2003) 56.
Nonetheless, the Appellate Division criticised the use of FPSPs by the High
Court Division.11 The Appellate Division observed:
As for the State policy of education, it is unfortunate that the learned

Judges have taken upon themselves an enquiry which is neither war-
ranted by law in the Constitution by the arguments of the parties. It is
for this reason that the constitutional mandate provided in the chapter
on Fundamental Principles of State Policy that these are not enforceable
in the Court of Law.12
It is submitted that the High Court Division rightly utilised the FPSPs in
interpreting the Constitution and other laws while disposing of a judicial re-
view in accordance with the Constitution (article 8(2)). Mahmudul Islam, the
former attorney general of Bangladesh, has rightly criticised this observation
of the Appellate Division in the following words:
In order to find the meaning of ‘public purpose’ in relation to education,

the High Court Division was not only entitled, but was also under con-
stitutional obligation, to consider whether the requisition of property
for a school of the type involved could be said to serve a public purpose
when article 17 mandates the State to adopt efective measures for the
purpose of establishing a uniform, mass-oriented and universal system
of education. It is submitted that in making the above observation, the
Appellate Division did not take into account the relevant provisions of
the Constitution. There is a definite distinction between the enforce-
ability of the principles of State policy and the interpretation of laws in
conformity with those principles.13
The power of the Court to render interpretation based on FPSPs was highlighted
in the Constituent Assembly debates. In the words of Tajuddin Ahmad, one of
the main leaders of the liberation war of Bangladesh, if the Court finds any lacuna
in interpreting any article of this Constitution, then it shall fill in that lacuna giv-
ing interpretations based on the fundamental principles of state policy.14
He further elucidated the significance of the provision regarding
interpretation:
We have made a law under which land and industrial factories and estab-
lishments can be nationalized. Due to the introduction of this system, if
11 Bangladesh v Winifred Rubie (1982) 2 BLD (AD) 34, 37.

12 ibid.
13 Islam (n 10) 57.
14 Bangladesh Constituent Assembly Debates (n 1) 386.
in any case, the object of this law is frustrated for which it was enacted or
some people are adversely afected, then if the judge gives judgement in
favour of those who are now opposing this system, we will have nothing
to do but to amend this Constitution.15
It may be noted that there is no express provision in the Constitution of

India regarding the application of the directive principles of state policy
(DPSP) in interpreting the Constitution and other laws. Nevertheless, the
Indian courts have used the DPSP as an aid in the interpretation of laws.16
In contrast, article 8(2) of the Constitution contains a clear mandate and a
duty for the Court to utilise the FPSPs in interpreting the Constitution and
other laws.
Article 8(2) denotes four utilities of the FPSPs, but it prohibits judicial
enforcement of FPSPs. The opposition and the independent members in the
Constituent Assembly, in total two, were in favour of judicial enforceability of
the FPSPs and strongly protested their unenforceability.17 The question of ju-
dicial unenforceability of the FPSPs was, in fact, one of the two most debated
issues in the Constituent Assembly.18 During the consideration of the Consti-
tution Bill19 in the Constituent Assembly, Suranjit Sengupta, the only member
of the opposition, raised an amendment proposal to omit the words ‘but shall
15 ibid.
16 See, eg, Mumbhai v Abdulbhai [1976] AIR SC 1455; Bhim v India [1981] AIR SC 234; Excel
Wear v India [1979] AIR SC 25.
17 During the time of general discussion on the Constitution Bill, Suranjit Sengupta pointed
out, inter alia, that some provisions of Part II were imitative of the Constitutions of Pakistan
of 1956 and 1962. Then he quoted the following statement of Mr Abul Monsur, a member
of the opposition in the then Constituent Assembly of Pakistan, where the insertion of such
principles in an unenforceable manner in the Constitution of Pakistan was criticised:
Now, Sir, what is this provision for directive principle which is found nowhere in the
world except in India and Ireland? These are the two solitary examples where constitution
provides for directive principles. It is preposterous to think that the constitution will give
some directives which will not be enforceable in law and which will not be justifiable and
will not be efective. If that is so, why should these things be in the constitution at all? It is
not a plaything of children. It is a sacred document which shall be preserved in the breasts
of the citizens of the state as a sacrosanct provision on which they would rely for protec-
tion of their rights – individual, social, collective and political. But they provide at the very
beginning that these or such provisions shall not be enforceable in any court of law. If that
is so, why do you provide it at all? Leave it to the people.
(Bangladesh Constituent Assembly Debates 222)
18 Another major issue of debate was the restrictions imposed on the fundamental rights embod-
ied in articles 32, 37, 38, 39 and 41 (ibid 492–526).
19 This phase of discussion and debates on the draft Constitution started on 31 October 1972
and continued until 4 November 1972 (ibid 443–690).
not be judicially enforceable’ in the draft article 8(2) of the Constitution.20

However, the proposal was rejected by the majority.21
Judicial enforcement of ESC rights recognised as judicially

unenforceable FPSPs
Economic, social, and cultural human rights embodied in Part II of the Con-
stitution as FPSPs have been explicitly declared in article 8(2) to be non-
justiciable.22 However, non-justiciability does not negate every obligation.
Judicial unenforceability under article 8(2) does not necessarily mean that the
duties imposed on the state to realise the FPSPs are beyond any constitutional
oversight or protection. The state is still constitutionally obliged to carry out
the mandates vis-à-vis the FPSPs. In the Constitution 8th Amendment Case,23
Chief Justice Chowdhury observed that while the FPSPs are not judicially
enforceable, the government must, nevertheless, make every efort to realise
them. To quote him:
Though the directive Principles are not enforceable by any Court, the
principles therein laid down are nevertheless fundamental in the [g]
overnance of the country and it shall be the duty of the State to apply
these principles in making laws. . . . This alone shows that the direc-
tive principles cannot be flouted by the executive. The endeavour of
the Government must be to realize these aims and not to whittle them
down.24
During the time of the Constituent Assembly debates, Mr Tajuddin Ahmad,

the first prime minister of Bangladesh,25 mentioned that the FPSPs repre-
sented a political agenda, and it would not be fruitful to enforce them via
the judiciary.26 But, he did not mean that they would never be implemented.
Without suggesting a specific method of implementation, he pointed out that
the setting of a time limit within which the social and economic rights were to
20 ibid 454.
21 The chairman of the Constitution Drafting Committee requested that he not ‘press’ for the
said amendment-proposal but he persisted. The speaker raised the amendment-proposal be-
fore the Assembly for voting and the proposal was comprehensively rejected by the Assembly
(ibid 455–456).
22 The Constitution of Bangladesh, art 8(2).
23 Anwar Hossain Chowdhury v Bangladesh (1989) 41 DLR (AD) 165.
24 ibid 198.
25 He was the prime minister of the Bangladesh government-in-exile formed on 10 April 1971.
See Moudud Ahmed, Bangladesh: Constitutional Quest for Autonomy (University Press Lim-
ited 1979) 264–266.
26 Bangladesh Constituent Assembly Debates (n 1) 386.
be implemented was a task for subsequent parliaments; that task did not fall
within the expected functions of the Constituent Assembly.27
There was no explicit disagreement with Tajuddin Ahmad’s statement.
Thus, it appears that the founders of the Constitution did not intend to keep
the FPSPs unimplemented for an indefinite period. Accordingly, all subse-
quent parliaments incurred the obligation to set targets to implement the FP-
SPs, at the least, progressively.
The ultimate intention of the constitution-makers was to pave the way to
ensure people’s economic and social human rights and to establish economic
justice. The state has a clear constitutional obligation to gear its activities to-
wards the implementation of the FPSPs. Every branch of the state including
the government and the Court is bound to comply with this obligation. To
press this point, Tajuddin Ahmed said as follows:
An additional wonderful system has been added [to] this Constitution of

ours. The judge will take his oath according to this Constitution. He will
decide everything in the light of this Constitution. Every man, every em-
ployee – whether he becomes a judge or whoever – will uphold this Con-
stitution on the top. If anyone makes any violation [of] this constitution
or if there is any such apprehension, then we must remain prepared to
face that situation in diferent ways.28
It was never in the minds of the constitution-makers to relieve the govern-

ment from the constitutional obligation to implement the FPSPs.29 It was
assumed that if the government failed to perform its obligation regarding
the FPSPs, that government would be removed by the people for which, the
constitution-makers believed, the Constitution provided a mechanism. In the
27 To quote him:
The contents of part II may be termed generally as political agenda. It cannot be
implemented within one year or five years. A question might arise that these (time
limit for implementation of the principles) could be fixed here. To answer this[,] I
would tell that the system of law-making scope introduced in the Constitution has
been done by this sovereign Assembly to a very logical extent. For this the parliament
constituted through the persons elected by the people in near future within very short
period of time after passing this constitution will look into it. …. But it is not logical
to expect that time frame from this Assembly. This Assembly in fact also is not willing
to do that. I think the elected assembly-representatives of that time will decide about
it. The responsibility to decide which of the fundamental principles of state policy will
be implemented this year and which one after five years has been left on the future
people (ibid).
28 ibid.
29 ibid.
Constituent Assembly, Professor Mohammad Yusuf Ali30 remarked that the

people are empowered to vote out a government that fails to implement the
FPSPs. So, the FPSPs cannot be interpreted in such a way that the government
stands beyond the reach of any consequence, simply on the plea that the FP-
SPs are not judicially enforceable.31 The members of the Constituent Assembly
never contemplated that the government could continue in ofce despite its
negligence towards the FPSPs.32 The Constituent Assembly thought that the
government elected by the people would be a body of persons of high moral
standard who would not and could not be negligent in performing duties
under Part II of the Constitution. This assumption (constitutive intention) of
the Constituent Assembly becomes apparent from the concluding speech of the
chairman of the Constitution Drafting Committee, Dr Kamal Hossain, who
said:
Who has been entrusted with the responsibility of implementing these

fundamental principles? That responsibility is of the peoples’ elected
representatives of the country. They will be elected by the votes of the
people. So, they (opposition and neutral member) could not tell that
the Constitution does not have any provision to translate the princi-
ples into reality if they would have trust [in] the people and peoples’
representatives.33
30 He was an influential member of the Constituent Assembly and was the minister for educa-
tion, cultural activities, and sports. The Proclamation of Independence was signed by him,
as a ‘duly Constituted Potentiary by and under the authority of the Constituent Assembly of
Bangladesh.’ See the Proclamation of Independence. (in the Constitution of Bangladesh (n
22) 7th Schedule).
31 As Singh argues in the context of the present constitution of Nepal, the post-conflict judicial
experience of the country illuminates that a robust and experimental role conception em-
braced by the Court sets it as an important actor for realising socio-economic rights in Nepal,
but only if it acts in alignment with civil society and other institutions. See Sabrina Singh,
‘Realizing Economic and Social Rights in Nepal: The Impact of a Progressive Constitution
and an Experimental Supreme Court’, (2020) 33 Harvard Human Rights J, 275–310.
32 To quote Ali:
Mr Speaker, it has been discussed both inside and outside this House that the present
Constitution does not have guarantee for food, clothing, education and medical care.
I am not sure how does it come at criticism? Constitution is a document of the hopes
and aspirations of the nation at large …. Food-clothing-education-medical care is a pro-
gram for the government. Whether the government will perform this program or not
… depends on the Constitution. If any government fails to perform it then it is to be
seen whether the constitution has provided any mechanism to remove that government
or not. The mechanism to remove that government has been provided in the present
constitution. That system has been given to the parliament …. The sovereignty of the
people has been recognised.
(Bangladesh Constituent Assembly Debates (n 1) 399.)
33 ibid 421.
Dr Hossain specifically mentioned that economic human rights were virtually

guaranteed under the present constitutional scheme. He observed:
Among all fundamental rights economic right is unique and the Consti-
tution has enough arrangements to ensure the enjoyment of economic
rights by the people. . . . There are many ways incorporated in the Con-
stitution to drastically change food, clothing, medical care, education,
and the whole economic system and to lead it towards a socialist track.34
He continued saying that no government could ignore the FPSPs. In his

words:
The power remains in the hands of whomsoever, whoever forms the

government and whatever parliament is made for legislation, each of
them has to proceed keeping in mind these fundamental principles, they
have to go forward settings these objectives ahead.35
Dr Hossain gave a unique explanation for not making the FPSPs judicially
enforceable. He urged that the people could better protect their basic rights
than the court. His following opinion is self-explanatory:
We see a unique characteristic of every century. So, a constitution cannot

be made in the way [of] keeping trust only on the court and taking away
every trust from the people. At that time the parliament that existed was
the parliament of the rich people. No system of [the] adult franchise was
recognized then. That constitution was enacted in a capitalistic format.
The then courts were also reactionists. The role of the judiciary was also
not that . . . satisfactory.
. . . We in our constitution have kept our full trust [in] the peas-
ants, workers and toiling masses. We have already completely recognized
that they are the owners of all powers of this country. We have also
recognized that they will exercise their powers through their elected
representatives.36
This reasoning advanced by the chairman of the Constitution Drafting Com-

mittee opened up a new horizon to enforce the constitutional obligation,
that is, the exercise of popular sovereignty, presumably at an election, in-
stead of mere reliance on the judiciary. It is clear from this discussion that the
constitution-makers did not consider the exercise of popular sovereignty to be
less important than the judicial enforcement as a mechanism for implementing
34 ibid 437.
35 ibid 439.
36 ibid.
the FPSPs. Dr Ambedkar, the chairman of the Drafting Committee of the

Constitution of India, at the time of introducing the draft constitution of
India also stated that the violation of India’s judicially unenforceable directive
principles of state policy could attract consequences from the electorate at the
election time.37
In the Kudrat-E-Elahi Panir v Bangladesh, Mustafa Kamal J echoed Dr
Ambedkar’s argument, observing that if the parliament passes any law violat-
ing the FPSPs then the judiciary is not the only light at the end of the tunnel,
and there are several other ways like public opinion, political parties, and the
elections.38
In making constitutional interpretations, the Supreme Court has enforced
diferent economic and social rights through the vehicle of the constitutional
fundamental right to life. For example, in Dr Mohiuddin Farooque v Bang-
ladesh (Contaminated Milk Case),39 the Supreme Court enforced the unen-
forceable right to health, an FPSP in article 18(1), through the enforcement
of the right to life, an enforceable civic right in article 32. In the Court’s
words,
[The] right to life is not only limited to the protection of life and limbs
but extends to the protection of health and strength of workers, their
means of livelihood, enjoyment of pollution-free water and air, bare nec-
essaries of life, facilities for education, development of children, mater-
nity benefit, free movement, maintenance and improvement of public
health by creating and sustaining conditions congenial to good health
and ensuring the quality of life consistent with human dignity.40
37 Dr Ambedkar stated in the Constituent Assembly of India (Constituent Assembly Debates, vol
VII, 41) as follows:
If it is said that the Directive Principles have no legal force . . . I am prepared to admit it.
But I am not prepared to admit it that they have no sort of binding force at all. Nor am I
prepared to conceive that they are useless because they have no binding force in law . . .
The Draft Constitution as framed only provides a [piece of] machinery for the government
of the country. . . . But whoever captures power will not be free to do what he likes with
it. In the exercise of it, he will have to respect these instruments of instructions which are
called Directive Principles.
38 (1992) 44 DLR (AD) 319, 346–47 [86]. Mustafa Kamal J observed:
A hypothetical question has been posed. Parliament passes a law which glaringly violates
and flouts a fundamental principle of state policy, and if its vires is challenged solely on the
ground of inconsistency with that principle and on no other ground whatsoever, will the
High Court Division declare … the law void? It is a madness scenario. The learned coun-
sel could not show any such legislation in this sub-continent, but suppose, Parliament is
struck with such madness, is the High Court Division in its writ jurisdiction the only light
at the end of the tunnel? What do public opinion, political part[ies] and election[s] do if
Parliament goes berserk?
39 (1996) 48 DLR (HCD) 438.
40 ibid 442 [17].
The Court added that although article 18(1) is not judicially enforceable,
articles 31 and 32 of the Constitution can be interpreted in light of the
provisions of article 18(1).41 The Court in Dr Mohiuddin Farooque v Bang-
ladesh42 recognised the right to live in a pollution-free environment as a
part of the right to life.43 The right to livelihood is an FPSP in article 15 of
the Constitution. However, the Court in Dr Mohiuddin Farooque v Bang-
ladesh44 included the right to livelihood within the folder of right to life. As
Badrul Haque J observed, life ‘cannot be sustained without its basic neces-
sities such as food and shelter’ or without the ‘facilities of health care [or]
education,’ and the basic needs of life ‘cannot be had without proper means
of livelihood.’45
Introduction of the basic structure doctrine and amendability

of FPSPs
In the context of the recent constitutional change regarding the introduction
of the doctrine of basic structure of the Constitution, the utility of the judicial
approach of enforcement of FPSPs through interpretation has been signifi-
cantly increased, as it is not possible anymore to take such a step by way of a
new constitutional amendment.46 In 2011, the parliament introduced the
Constitution’s 15th Amendment, which has declared a set of constitutional
provisions to be unamendable in any way, that says:
Notwithstanding anything contained in article 142 of the Constitution,

the preamble, all articles of Part I, all articles of Part II, subject to the
provisions of Part IXA all articles of Part III, and the provisions of arti-
cles relating to the basic structures of the Constitution including article
41 ibid.
42 Dr Mohiuddin Farooque v Bangladesh (2003) 55 DLR (HCD) 69.
43 The Court at 79 said:
Article 32 guarantees a right of life. This expression ‘life’ does not mean merely an elemen-
tary life or sub-human life but connotes in this expression the life of [a human being,] the
greatest creation of the Lord[,] who has at least a right to a decent and healthy way of life
in a hygienic condition. It also means a qualitative life among others, free from environ-
mental hazards. This is also one of the basic rights of a human being to live in a healthy
atmosphere and constitutional remedy under Article 102 will be available if this basic hu-
man right is threatened due to violation of any of the provisions of the relevant laws . . .
(ibid 79.)
44 (1998) 3 MLR (HCD) 33.
45 ibid 4.
46 The suggestion given by Chowdhury that ‘socio economic rights that comprise the basic
necessities of life ought to be recognized as constitutionally protected fundamental rights’ is
no more possible to implement (M Jashim Ali Chowdhury, ‘Claiming a “Fundamental Right”
to Basic Necessities of Life: Problems and Prospects of Adjudication in Bangladesh’ (2011 &
2012) 5 Indian Journal of Constitutional Law 184, 208).
150 of Part XI shall not be amendable by way of insertion, modification,

substitution, repeal or by any other means (art. 7B of the Constitution).
Thus, it has now been impossible to bring changes in the constitutional text
of article 8(2), even if any future parliament wants to do that, to make the
fundamental principles of state policy judicially enforceable.47 It appears that
the newly inserted article 7B goes against the spirit of the Constitution and
the intention of framers who wanted to make the FPSPs judicially enforceable
at any future convenient time.
Conclusion
It has been clear from the debates held in the Constituent Assembly that the
Assembly wanted to make the FPSPs judicially enforceable at a certain point
in time depending on the economic development of the country. Thus, ac-
cording to originalism, it appears that the framers of the Constitution did not
intend to keep the FPSPs judicially unenforceable forever. According to the
originalist theory of constitutional interpretation, there arguably is created a
scope for the judiciary to enforce ESC rights recognised as FPSPs. Moreover,
it appears from this study that the Supreme Court of Bangladesh indirectly but
occasionally enforced constitutional principles on economic and social rights
through the right to life, despite the bar against judicial enforcement of those
principles. The need for such judicial creativity is even more important now in
the context of the newly inserted eternal clause (art. 7B) in the Constitution
that denies any possibility of legislative reform regarding the justiciability of
FPSPs.
47 Hoque argued that ‘the all-embracing Bangladeshi eternity clause is almost certain to yield
complex implications for national politics and constitutional adjudication’. See Ridwanul
Hoque, ‘Eternal Provisions in the Constitution of Bangladesh: A Constitution Once and For
All?’ in Richard Albert and Bertil E Oder (eds), An Unconstitutional Constitution?: Una-
mendability in Constitutional Democracies (Springer 2018) 226.
12 Locating women within
‘we, the people’ in the
Constitution of Bangladesh
Psymhe Wadud
Introduction
Quite some decades ago, one constitutional law scholar asked: ‘can consti-
tutions be for women too’?1 While she answered in the afrmative, aware,
perhaps, of the dangers of overgeneralising,2 the question is still as relevant
as it had been decades back. Constitutions can, and, in fact, should undoubt-
edly be for women, too. However, since the constitution we have depends
upon the constitution we make and take further,3 it is important to delve into
the history and development of the constitutional scheme to locate women’s
agency and personhood within its broad spectrum as well as to visualise their
constitutional futures.
The embrace of formal equality and the explicit commitment to sex equality
became a general trend in postwar constitutionalism.4 The experiences of Bang-
ladesh are not exceptional in this regard. The 1972 Constitution entrenched
the principle of formal equality, with leeway for positive discrimination in favour
of women.5 This chapter maintains that, despite these commitments, a lack of
gender sensitivity permeates the constitutional scheme. It adopts a thick un-
derstanding of the Constitution, which regards it as a symbolic and discursively
1 Donna Greschner, ‘Can Constitutions Be for Women Too?’ in Dawn Currie and B MacLean
(eds), The Administration of Justice (University of Saskatchewan Social Research Unit 1986) 20.
2 Beverley Baines and Ruth Rubio-Marin (eds), The Gender of Constitutional Jurisprudence
(Cambridge University Press 2005) 1.
3 Hanna F. Pitkin, ‘The Idea of a Constitution’ (1987) 37 J Legal Education 167, 168 (‘Except
insofar as we do, what we think we have is powerless and will soon disappear. Except insofar as,
in doing, we respect what we are – both our actuality and the genuine potential within us – our
doing will be a disaster’).
4 Baines and Rubio-Marin (n 2) 7.
5 See the Constitution of the People’s Republic of Bangladesh (hereafter ‘the Constitution’),
article 28(2) (‘Women shall have equal rights with men in all spheres of the State and of public
life’). Article 28(4) states that ‘[n]othing in this article shall prevent the State from making spe-
cial provision in favour of women or children or for the advancement of any backward section
of citizens’.
DOI: 10.4324/9781003276814-16
194 Psymhe Wadud
embedded document operating on multiple sites,6 such as the Court and the
legislature. Rather than revisiting the existing debates regarding discrimination
against women, this chapter evaluates women’s equal status within the spec-
trum of ‘we, the people’, through a scrutiny of the constitution-making process,
relevant judicial decisions, and the representation of women in the legislature.
The chapter proceeds in three parts. The first part traces the intersection of
women and the constitution-making process. Considering that constitutional
rights may also serve as constitutional limits in some cases and, thereby, have
antithetical consequences,7 this part critically evaluates the provision of formal
equality. Since no analysis of women’s constitutional rights would be complete
without referring to the sphere of their application, the second part briefly
discusses the role of the Supreme Court of Bangladesh in interpreting consti-
tutional rights relevant to women. The idea spread through this part has been
to locate women as agentic subjects within the judicial approaches to gender
and the Constitution.
The third part, in discussing women within the spectrum of ‘the political’,
focuses on women’s historical and present status in the legislature. In doing
so, the myopic vision8 that the successive governments have had since inde-
pendence has been highlighted. This part argues that it was, by and large, the
lack of a gender-sensitive political will that resulted in the under-represen-
tation of women in the legislature. This part further argues that the under-
representation of women in the legislature violates one of the meta-norms of
the Bangladesh Constitution, namely, representative democracy. The chapter
concludes with some ways forward, particularly relevant for the judiciary and
the legislature across the politico-legal landscape.
Locating ‘women’ within ‘the making’ of and ‘the made’

Constitution of 1972
The nationalist movement for an independent Bangladesh did not have an
underlying gender-conscious agenda. However, the images of a fraction of
women mobilising and participating in underground resistance (for some, even
in actual combat) tend to show that women, at least symbolically, constituted
half of the national collectivity and conscience in the context of the liberation
war.9 Besides, Bangalee nationalism foregrounded women as the carrier of
6 See generally, Robert Leckey, ‘Thick Instrumentalism and Comparative Constitutionalism: The
Case of Gay Rights’ (2009) 40 Columbia Human Rights L Rev 425, 437.
7 Baines and Rubio-Marin (n 2) 10.
8 For instance, the first five Five-Year Plans were silent on the question of women’s political par-
ticipation. It was only the sixth Five-Year Plan of Bangladesh (2011–2015) that addressed this
issue. Ensuring direct election in the reserved seats in parliament was underscored as one of
the main targets of the Plan. See the Sixth Five-Year Plan–2011–2015: Accelerating Growth and
Reducing Poverty (Bangladesh Planning Commission 2011) 425.
9 Nayanika Mookherjee, ‘Gendered Embodiments: Mapping the Body-Politic of the Raped
Woman and the Nation in Bangladesh’ (2008) Feminist Review 36, 44.
Locating women within ‘we, the people’ in the Constitution 195
nationality. Further, women, as a group, were aestheticised as the embodi-

ment of political motherhood. However, so far as the constitution-making for
Bangladesh was concerned, women could not share half the burden, as will
be elaborated. Inequality permeated both the process of the drafting of the
Constitution and its text, relevant to women.
Constitution, equality, and women

The drafters of any written constitution are assigned with an almost superhu-
man task of setting out the limits and extents of powers of a nation-state, and
therefore, imperfections in the linguistic or textual expressions can be chal-
lenging to avoid.10 However, the choice of words and expressions is of particu-
lar significance to women.11 In most societies, adverse assumptions about the
roles, attributes, and capacities of women are common, and save caution, there
are risks that such assumptions will be welded within the words of a constitu-
tion and transcend across generations.12
The Bangladeshi Constitution establishes the constitutional equality princi-
ple in article 27 and especially recognises equality between men and women in
all spheres of ‘the State and public life’,13 provides for equal opportunities for
women, and lays down women’s equality both as a fundamental right and as a
fundamental principle of state policy.14 However, a careful reading of these ad-
mirable provisions, particularly in the light of the provision on gender equality
as a fundamental right, produces unease.15
A purposive interpretation can make room for women’s equality with men,
on every possible count, across both public and private spheres.16 A textual
interpretation, however, can easily bring on board a dichotomy between the
10 Helen Irving, Gender and the Constitution: Equity and Agency in Comparative Constitutional
Design (Cambridge University Press 2008) 38–40.
11 ibid 40.
12 ibid.
13 The Constitution, article 28(2).
14 See the Constitution, article 29(1), which states that ‘no citizen shall, on grounds only of
religion, race, caste, sex or place of birth, be ineligible for, or discriminated against in respect
of, any employment or ofce in the service of the Republic’. Article 19(1) states that ‘the State
shall endeavour to ensure equality of opportunity to all citizens’ and article 19(3) provides
that ‘the State shall endeavour to ensure equality of opportunity and participation of women
in all spheres of national life’.
15 See generally, Psymhe Wadud, ‘Women and a National Imaginary’ in Mohammad Sha-
habuddin (ed), Bangladesh and International Law (Routledge 2021); Psymhe Wadud,
‘Women, Rape Law and the Illusory Sex Equality Clause in the Bangladeshi Constitution’
(Verfassungblog, 26 October 2020) <https://verfassungsblog.de/women-rape-law-and-
the-illusory-sex-equality-clause-in-the-bangladeshi-constitution/> accessed 8 November
2021.
16 Sara Hossain, ‘Equality in the Home: Women’s Rights and Personal Laws’ in Rebecca J. Cook
(ed), Human Rights of Women: National and International Perspectives (University of Penn-
sylvania Press 1994) 475.
196 Psymhe Wadud
private and the public and, thereby, relegate women to a subordinate position
in the private realm.
The conceiving of the public realm of employment, work, and education
and the private realm of domestic and intimate family relations as separate
and dichotomous is particularly harmful to sex equality as it hides beneath it
women’s de facto subordination within domesticity.17 Thus, by evoking the
public-private dichotomy that fuels much of feminist legal jurisprudence, the
Constitution in a way masks the myriad forms of discrimination that women
encounter in the private spheres.18
Locating women in making ‘their’ Constitution
The mere numerical presence of women in power cannot overnight be trans-

lated into a pro-women impact on overall policy- or law-making, due primar-
ily to institutionalised gender biases.19 However, even though the number is
not all that counts, anyone concerned with gender equality must still count
numbers.20
Among the thirty-four members of the Constitution Drafting Committee,
there was only one woman, inducted from among seven female members of
the Constituent Assembly who were (indirectly) elected to the reserved seats.21
Moreover, in terms of drafting and discussing the Constitution, especially texts
17 See generally, Catharine A. MacKinnon, Feminism Unmodified: Discourses on Life and Law
(Harvard University Press 1988); Frances E. Olsen, ‘The Family and the Market’ (1983) 96
Harvard Law Review 1497; Ruth Gavison, ‘Feminism and the Public/Private Distinction’
(1992) 45 Stanford Law Review 1; Ann E Freedman, ‘Sex Equality, Sex Diference, and Su-
preme Court’ (1983) 92 Yale Law Journal 913–968; Susan Okin, Women in Western Political
Thought (Princeton University Press 1979) 273–304; Taub and Schneider, ‘Perspectives on
Women’s Subordination and the Role of Law’ (1989) 39 University of Toronto Law Journal
127; D Kairys (ed), The Politics of Law: A Progressive Critique (Basic Books, 1982) 117–127.
18 See Beverley Baines, Daphne Barak-Erez, and Tsvi Kahana (eds), Feminist Constitutionalism:
Global Perspectives (Cambridge University Press 2012) 10.
19 Anne Marie Goetz, ‘Gender and Accountability’ in Alexandra Dobrowolsky and Vivien Hart
(eds), Women Making Constitutions: New Politics and Comparative Perspectives (Palgrave
Macmillan 2003) 52.
20 L. Trimble and J. Arscott, Still Counting: Women in Politics Across Canada (Broadview Press
2003) 157.
21 The Constituent Assembly of Bangladesh (CAB) derived its existence from the Proclamation of
Independence of 10 April 1971 which had drawn its legitimacy from the ‘elected representatives
of the people of Bangladesh’ returning from the 1970–1971 elections. Subsequently, the Provi-
sional Constitution of Bangladesh Order (12 January 1972) also defined the CAB. The Bangla-
desh Constituent Assembly Order 1972 (23 March 1972) provided for the structure, powers and
functions of the CAB. On 11 April 1972, CAB established a 34-member Constitution Drafting
Committee chaired by Dr Kamal Hossain, the then law minister. Among the thirty-four mem-
bers, there was only one female member, Ms Begum Razia Bano. Ms Bano had been elected to
one of the women’s seats in the National Assembly in the 1970 elections. See further Ridwanul
Hoque, ‘The Founding and Making of Bangladesh Constitution’ in Kevin YL Tan and Ridwanul
Hoque (eds), Constitutional Foundings in South Asia (Hart Publishing 2021) 104–105.
that directly concern and are significant to women, the female participation
was superfluous.
In the Assembly, there were fierce debates and discussions on many issues,
such as the realisation of socialism, marginalisation of the ethnic minorities
within the project of nationalism, the content and meaning of secularism, and
prime ministerial powers, to name some. Following the publication of the
draft Constitution, the reactions from diferent political factions also revolved
around the same issues.22 Amid all these, something that remained at the mar-
gin was the ‘woman question’.
The ambiguity embedded in the expression ‘state and public life’ did not
garner attention of any of the members of the Assembly, let alone the drafting
committee. However, a particular concern about the status of women in the
private realm, especially in the backdrop of unequal norms of religion-based
personal laws, was very much there – coming from none other than a woman.
One of the seven female representatives of the Constituent Assembly, Badrun-
nesa Ahmed, clearly articulated the need to reform religion-based personal
laws that often relegate women to a subordinate position in the private realm.
She aestheticised the articulation with the hope for a secular approach from
future parliaments.23
The sole woman member of the Constitution Drafting Committee, Be-
gum Razia Bano, endorsed Badrunnesa Ahmed and further proposed that
‘the Constitution should have a scheme so that future parliaments can take re-
course to it in reforming religion-based personal laws’,24 to help realise equality
between sexes in the private realm. It is unclear whether she acknowledged the
ambiguity or potential regress embedded in the expression of gender equal-
ity in the draft Constitution. She also noted that she had an amendment to
propose to article 41, to protect the freedom of religion so as to constitution-
ally back such legislative reforms, which she could discuss, ‘with her party’s
permission’.25 This proposition surprisingly did not invite any questions26 or
strictures; the issue never came up in the subsequent days, not even when ar-
ticle 41 was discussed and debated at length in the Assembly.
Interestingly, independent member Manabendra Narayan Larma observed
that women were entirely ignored in the draft Constitution,27 although
22 Abul Fazl Huq, ‘Constitution-Making in Bangladesh’ (1973) 46 Pacific Afairs 59, 63.
23 Speech of Mrs Badrunnesa Ahmed, Gana Parishad Bitarka, Volume II, 11th Session, 27
October 1972.
24 Gana Parishad Bitarka, ibid (translation by the author).
25 ibid.
26 Interestingly, this important point was followed by complaints from one male member, Mr
Golam Hasnayen, to the efect that ‘by letting 4 out of 7 women speak in the Assembly, Chief
Whip was giving 60% of the total women an opportunity to speak, discriminating against men,
no more than 12% of whom were getting such opportunity’ (translation is mine). The speaker
condescendingly responded with ‘women always get more time’, ibid, informal interactions
between Mr Hasnayen and the Speaker Shah Abdul Hamid.
27 Gana Parishad Bitarka (n 23), 9th Session, 25 October 1972.
198 Psymhe Wadud
without much substantiation. More interestingly, Suranjit Sengupta, the only

member from the lone opposition party and a member of the drafting com-
mittee, put forward his dissent on reserving fifteen parliamentary seats for
women. Mr Gupta was in favour of reserving twenty seats only in municipal
areas to be filled with women elected by women, but the scope of his proposal
remains unclear.28 The bright side is that he proposed direct election in the
reserved seats.
Court, the Constitution, and women

The approach of the Supreme Court of Bangladesh (hereinafter ‘the Court’)
to the question of equality of men and women in public life has been quite
straightforward. The Court has largely adopted a ‘textualist’ approach to
the Constitution when dealing with cases on the intersection of women and
the so-called ‘state and public life’. Consciously or otherwise, the Court
has been faithful to the distinction between public and private and has also
opted for categorising diferent kinds of discrimination within the private
realm.
Overall, the decisions, even the ones that are admirable, are grounded in
the ethos of value-neutral legal positivism, uninformed by a probing judicial
analysis of gender politics, direct and indirect sex-based discrimination, and
the social context. To a large extent, it has been either a plain textual reading
of the constitutional provisions or that of the enacted laws. Amid all these,
a particularly normative value-laden approach towards gender equality has
largely gone missing.
Recognising sex-based discrimination in ‘state and public’ life:

a positivist approach
Generally, the Court has been quite prompt in underscoring sex-based dis-
crimination in the public realm, for instance, in work and employment. In
Dalia Parveen v Bangladesh Biman Corporation, for instance, the High Court
Division adjudged unconstitutional a service regulation of Bangladesh Biman,
the state-owned airline company, that discriminated between male and female
cabin crews in respect of their age of retirement by relying on a textual in-
terpretation of article 28.29 On another occasion, a regulation providing for
the instantaneous termination of female cabin crews on account of pregnancy
for the third child in the state-owned airline company was found discrimina-
tory and unconstitutional.30 On both occasions, the Court did not deliberate
on the nuances of indirect discrimination or discrimination across diferent
28 ibid, 15th Session, 2 November 1972.

29 (1996) 48 DLR 132. See also Rabia Bashri Irene v Bangladesh Biman Corporation (2000) 52
DLR (HCD) 308.
30 Marzia Tauhida v Biman Bangladesh Airlines, Writ Petition No. 5157 of 2010.
intersectionality (such as age in the former case and pregnancy in the latter
case) underpinned by socially constructed conditions prejudicial to women on
account of their sex.
In Shamima Sultana Sheema v Bangladesh,31 upon a plain reading of ar-
ticles 27, 28, and 28(4), an ofcial notification32 was held to be discrimina-
tory against women ward commissioners in a local government unit who
were elected from the reserved seats. The Court observed that the ‘na-
ked’ discrimination was ‘so stark and apparent that it [did] not require any
elucidation’.33 Here as well, the Court spilled a lot of ink iterating the obvi-
ous – that afrmative action or positive discrimination for women is consti-
tutionally provided. It did not elaborate34 how afrmative actions are means
to attain equality.
In Dr Ahmed Hussein v Bangladesh35 and Farida Akhter v Bangladesh,36
legal challenges against the extension of tenure for the reserved seats in the
parliament for women and the provision for their indirect election failed.37 The
Court observed that the provisions of reserved seats and indirect election were
in the original Constitution and, hence, valid. The Court resorted to the no-
tion of substantive equality by textually interpreting article 28(4). However,
while appearing textualist, it again lost an opportunity to deliberate on the
nuances, potential problems, and practical consequences of indirect election
in the reserved seats. A detailed deliberation on this can be found in the later
discussion on politics of reserve seats.
In Advocate Md Salauddin Dolon v Bangladesh,38 the Court iterated
the provisions on gender equality and freedom of expression while dealing
31 (2005) 57 DLR (HCD) 201.

32 The Ministry of Local Government, Rural Development and Co-operatives issued a circular
on 23 September 2002 purporting to provide women Pourshava commissioners elected from
reserved seats with reduced powers and functions as compared to the commissioners elected
from general seats.
33 ibid.
34 Shamima Sultana is praiseworthy on one count. In his obiter, ABM Khairul Haque J noted
the inefcacy of indirect election for the reserved seats in parliament. For him, the system
does not seem to fit in democratic practices but, rather, raises a number of questions such as
the question of who these members in the reserved seats are accountable to since they do not
have any constituencies of their own. He further thought that it is anything but democratic
if these members owe their loyalty to the existing members of parliament who elected them.
This system, as it appears, instead of either helping the democratic process or upholding the
dignity of the women, helps the majority/ruling party increase its edge over the other parties
at the cost of the women members who are indirectly elected.
35 (1992) 44 DLR (AD) 109.
36 (2006) 11 MLR (AD) 237.
37 The original Constitution of 1972, article 65(3), reserved fifteen seats for women for ten
years, to be indirectly elected by the members of parliament. Each member was to cast a vote
for a candidate in each of the fifteen seats and the candidate securing majority votes in each
seat was to be elected. See Mahmudul Islam, Constitutional Law of Bangladesh (3rd edn, Mul-
lick Brothers 2012) 456.
38 (2011) 63 DLR (HCD) 80.
200 Psymhe Wadud
with a state ofcial’s arbitrary attempt to impose a gender-based dress code

(hijab) on a woman (a de facto employee). In this instance, however, the
Court missed the opportunity to appear comparatist39 and to analyse in
detail how imposing such a sanction may potentially violate a woman’s
freedom of religion and/or faith too and how it can be, in some cases, in-
direct discrimination against women unwilling to wear headscarves on the
ground of religion/faith (besides freedom of expression, personal liberty,
and privacy).40
However, it is significant to note that in interpreting sexual harassment
within the gender-equality paradigm, the Court appeared more purposive41
than textualist in its interpretive approaches. In Bangladesh National Women
Lawyers’ Association v Bangladesh,42 for example, the High Court Division
observed that the Constitution embraces all elements of gender equality, a
concept that includes protection from sexual harassment and abuse as well.
The Court held that the state is accountable for not enacting a law to protect
women from sexual harassment at the workplace and in educational institu-
tions. It is, however, pertinent to mention that in this instance, the Court was
heavily influenced by a similar decision of the Indian Supreme Court. The
High Court Division merely adopted the purposive interpretive techniques
employed by the Indian court in question.43
Loyalty towards the public-private dichotomy
The Court appears wary when it comes to challenging traditional concepts

of sex-based inequality in the private realm. Such an approach expresses the
Court’s inability or unwillingness to understand the indivisibility of the public
and the private in the context of the ‘woman question’.
In 1982, for example, the High Court Division in Nelly Zaman v Gias-
uddin44 observed that a husband’s unilateral plea for ‘forcible’ restitution of
conjugal rights against an unwilling wife is ‘violative of the accepted state and
public principle and policy’.45 The Court profered an argument of ‘social de-
velopment’ to highlight the need for progressive judicial decisions, and based
its decision on the equality clause of the Constitution.46 The decision was
39 See Psymhe Wadud, ‘An Aspect of Freedom of Religion’, The Daily Star (Dhaka, 15 May
2018).
40 ibid.
41 See generally, Aharon Barak, Purposive Interpretation in Law (Princeton University Press
2005).
42 (2009) BLD (HCD) 415. See also Naripokkho v Bangladesh (2008) 10 SCOB (HCD) 140.
43 Vishakha v State of Rajasthan (1997) 6 SCC 241.
44 Nelly Zaman v Md. Giasuddin (1982) 34 DLR (HCD) 221. See also Khodeja Begum v Sadeq
Sarker (1998) 18 BLD (HCD) 31.
45 Nelly Zaman, ibid 225, per SM Hussain J.
46 Ridwanul Hoque and M Morshed Mahmud Khan, ‘Judicial Activism and Islamic Family Law:
A Socio-legal Evaluation’ (2007) 14(2) Islamic Law and Society 204, 218.
significant since the Court there went beyond the cubbyhole of positivism and
applied the principle of sex equality in private relations that tend to determine
women’s public realities and lived experiences.
Subsequently, however, in Hosna Jahan v Shahjahan (Shaju),47 the High
Court Division changed its stance in favour of a 1985 law that explicitly rec-
ognised the restitution of conjugal rights as one of the jurisdictional matters
of the family court.48 On appeal from Hosna Jahan, the Appellate Division
observed that the conscious policy of the legislature ‘would prevail over the
[Court’s] decision’ in Nelly Zaman.49 Thus, the groundbreaking Nelly Zaman
decision was discarded by a positivist judicial decision.50
Again, in Syeeda Malkani v Bangladesh,51 the Court refused to invalidate
section 5 of the Citizenship Act 1951, which at the time provided that a Bang-
ladeshi mother married to a foreigner could not transmit citizenship to her
children.52 In doing so, the Court turned a blind eye to the citizens’ right
to enjoy equal legal protection and equality under articles 27 and 28 of the
Constitution. The Court decided against sex equality and favoured, instead,
the traditional gender norms in the private realm, implying that one parent
(father) is preferable to the other (mother) for conferring citizenship (a right
having multifaceted implications in public life).
Categorisation of discrimination within the private realm
Two cases that can be considered in understanding the categorisation of dis-

crimination against women within the private realm are Dr Shipra Chowdhury53
and Jamuna Knitting.54 In dealing with the question of parental detention in
the former case,55 the Court observed that the parents have the right to advise
their children in terms of making significant decisions in their life such as a
47 (1998) 18 BLD (HCD) 321.

48 The Family Courts Ordinance 1985, section 5B.
49 Hosna Jahan v Shahjahan (Shaju) (1999) 4 BLC (AD) 117.
50 However, given that Nelly Zaman did not abolish the remedy of restitution of conjugal rights
but rather held that the remedy could not be enforced against an unwilling wife, Hosna Jahan
has not arguably overruled that part of the ratio decidendi of the decision. See Hoque and
Khan (n 46) 233–234.
51 Writ Petition No. 3192 of 1997 (judgment of 1 September 1997). See Ridwanul Hoque, Re-
port on Citizenship Law: Bangladesh (2016) EUDO Citizenship Observatory 7. Available at:
<https://cadmus.eui.eu/bitstream/handle/1814/44545/EudoCit_2016_14Bangladesh.
pdf>.
52 In 2009, section 5 of the Citizenship Act 1951 was amended via the Citizenship (Amend-
ment) Act 2009 (Act XVII of 2009), section 2 (with efect from 31 December 2008), to
enable the Bangladeshi mother to transmit to her children citizenship by descent.
53 Dr Shipra Chaudhury v Bangladesh (2009) 29 BLD (HCD) 183.
54 Jamuna Knitting and Dyeing Ltd v Messers Yunusco K. Textile Ltd, Civil Petition Nos. 4–5 of
2009 (decision of 30 November 2016).
55 The petitioner, a Bangladeshi woman, had moved to the United Kingdom after completing
her education. While visiting her family in Bangladesh, she was allegedly detained by her
202 Psymhe Wadud
decision about marriage, but they must not treat their children as their slaves.
The petitioner’s liberty enshrined in the Constitution shall mean and include
her right to make marital decisions free of coercion, violence, and discrimina-
tion, the Court added.
In the latter case, the Court grappled with the question of whether the
constitutionality of a rule of religion-based personal law (unconnected with
gender) can be challenged. In this regard, it made an interesting observation
in obiter. The Court observed that ‘under Muslim personal law, a woman can
inherit her father’s property, however, a Hindu woman, under shastrik (clas-
sical) Hindu law, cannot. This is a rule of personal law and cannot be held to
be discriminatory’.56
A comparison between Shipra Chowdhury and Jamuna Knitting lends cre-
dence to a made-up categorisation of discrimination within the private realm:
while forced marriage is malignant, unequal inheritance laws are benign and,
hence, tolerable.
Overall, the ideological leaning of the judiciary towards positivism or posi-
tive law-making makes it important to probe where the legislature stands.
Women in the ‘political’: legislature in context

Under-representation of women in politics is a reality across jurisdictions to
varying degrees. Two commentators identified interacting causal factors,
‘supply’ and ‘demand’, which result in women’s under-representation.57 The
supply-side factors include women’s lack of interest or willingness to partake in
politics.58 The demand-side factors are related mainly to the political parties,
where such parties discriminate against women through the process of nomi-
nations for elections.59
In the context of Bangladesh, the supply-side factors can barely be ig-
nored, which are, by and large, underpinned by numerous challenges mar-
ring women’s lives, including women’s responsibilities for family and children,
the conservative religious and cultural climate in society, and discriminatory
socioeconomic conditions, among others. Besides, some strong demand-side
factors contribute to the further marginalisation of women in politics. For
instance, the lack of gender-conscious political will of successive governments
in Bangladesh since independence can be underscored as an important factor
contributing to the under-representation of women in politics at large.
parents, forcibly injected with anti-psychotic drugs and mood stabilisers and forced to marry
a man of their choice.
56 Jamuna Knitting (n 54) para 40.
57 Pippa Norris and Joni Lovenduski, Political Recruitment: Gender, Race and Class in the Brit-
ish Parliament (Cambridge University Press 1995).
58 ibid.
59 ibid.
The politics of reservation in Bangladesh: a tool not ‘for’ women
Women’s battle for political representation is an old one, not peculiar to an in-
dependent Bangladesh. Sufrage came to the women of British Bengal through
provincial legislative eforts only in the 1920s.60 The Government of India Act
1935 enfranchised women under British rule and made provisions for reserved
seats for women in the Council of State and Federal Assembly.61 Upon par-
tition, India and Pakistan chose diferent paths about retaining reservations
(quotas) for women in the legislature; while Pakistan carried the British legacy
forward, India did not.
Pakistani governments, both civilian and military, established provisions of
reserved seats for women in the parliaments in 1956,62 1962,63 and 1970.64
However, the proportion of reserved seats for women hung between 3 and
4 percent, no greater than what was envisaged by the Government of India
Act 1935.65 The 1972 Bangladesh Constitution did not do anything diferent
either. The approach to gender for an independent Bangladesh was coinci-
dentally in perfect alignment with that of its predecessor, Pakistan’s Consti-
tution.66 In the original Constitution, fifteen seats (4.8 percent of the total
300 seats) were reserved for women for ten years. Characterised by indirect
election, the scheme of reservation,67 as a British-Pakistani legacy, turned out
60 Barbara Southard, ‘Colonial Politics and Women’s Rights: Woman Sufrage Campaigns in
Bengal, British India in the 1920s’ (1993) 27 Modern Asian Studies 397.
61 Six seats were reserved for women in the Council of State, one each to be selected by the
provincial legislatures of Madras, Bengal, Bombay, the United Provinces, Punjab, and Bihar.
Nine seats were reserved for women in the Federal Assembly – two from Madras, two from
Bombay, one from Bengal, one from the United Provinces, one from Punjab, and one from
the Central Provinces – and were to be chosen by an electoral college consisting of the female
members of each respective provincial legislature. These numbers remained extremely small,
amounting to less than 4 percent of both chambers. See Nabeela Afzal, Women and Parlia-
ment in Pakistan, 1947–1977 (Pakistan Study Centre 1999), cited in Mona Lena Krook,
Quotas for Women in Politics: Gender and Candidate Selection Worldwide (Oxford University
Press 2009) 59.
62 Article 44(2) of the 1956 Constitution provided for ten reserved seats (five from West Paki-
stan and five from East Pakistan) for women in the National Assembly.
63 Article 20(2) of the 1962 Constitution provided for six reserved seats (three from West Paki-
stan and East Pakistan each) for women in the National Assembly.
64 Legal Framework Order 1970 reserved thirteen reserved seats for women (seven from East
Pakistan, six from West Pakistan).
65 Krook (n 61) 76.
66 See Wadud (n 15).
67 In several respects, women MPs from reserved seats are treated less than equally compared
to MPs in the general seats, and significant political disparities exist in the distribution of
responsibilities. Thus, by failing to provide equal status to those women with the rest of
the members (including women members) from the general seats, the afrmative measure
not only upholds unequal power-based patriarchal ideologies but also distinctly reinforces
women’s subordination and degradation in politics. Indeed, by the reserved seats women have
been silenced and devalued rather than encouraged to exploit the benefit of the system for
their self-advancement. See Najma Chowdhury, ‘Women in Politics’ (1994) 1 Empowerment:
204 Psymhe Wadud
to evolve as but one manifestation of the lack of gender consciousness perme-

ating the psyche of diferent political parties.
In the context of Bangladesh, the representation of women in the parlia-
ment has, by and large, been quite disappointingly low but for the reserved
seats and their continuous increase.68 It is worth mentioning that the post-
independence ruling party, the Awami League, did not nominate any woman
candidate in the country’s first general election in 1973.69 As Halder percep-
tively puts it, ‘the party that publicised democratic ideals, considered reserved
seats as the only way of ensuring women’s political representation’.70
In 1975, the government’s powers were usurped through unconstitutional
means. The successive military rulers appeared quite condescending and estab-
lished specific ofces responsible for mainstreaming gender in development.
These initiatives followed the declaration of 1975 as the International Year of
Women and the UN Decade of Women (1976–1985).71 In 1978, the then
military government increased the proportion of women’s reserved seats in
parliament from fifteen to thirty. Interestingly, it is argued that all these hap-
pened because the unconstitutional military regime wanted to increase the
volume of donor assistance by picking up one of the donors’ favorite themes,
‘Women in Development’.72
The provision for the reservation of parliamentary seats for women lapsed
in 1987, and there were no reserved seats for women in the parliament until
1991. In 1990, a constitutional amendment brought about by a democrati-
cally elected government restored the thirty reserved seats, albeit retaining
A Journal of Women for Women 41; Farah Deeba Chowdhury, ‘Women and Election: Issues in
Bangladesh’ (2000) 8 Rajshahi University Studies 121; Afroza Begum, ‘Politics in Bangladesh:
Need for a Reconceptualization of the Politico-Legal Approach to Mitigate Women’s Disad-
vantaged Positions in the Parliament’ (2000) 44 J of Asian and African Studies 171, 181.
68 In the first parliament of 1973, the number of reserved seats for women was fifteen, while
there were no directly elected women. In the second and third parliaments (of 1979 and
1986), the number was thirty for each, while the number of directly elected women was only
two for each parliament. In the fourth parliament, while there were only four directly elected
women, there were no reserved seats for women. In the fifth parliament of 1991, the number
of women directly elected was four and the number of reserved seats for women was thirty.
In the sixth and seventh parliaments (both of 1996), while the number of reserved seats re-
mained at thirty, the number of directly elected women was respectively three and eight. In
the eighth parliament of 2001, there were no reserved seats for women and the number of
directly elected women was six. In the ninth and tenth parliaments (of 2008 and 2014) the
number of women in the reserved seats was forty-five and fifty respectively and the number of
directly elected women was only nineteen for each. In the eleventh parliament of 2018, while
the number of women in the reserved seats was increased to fifty, directly elected women are
only twenty-two.
69 Nomita Halder, ‘Female Representation in Parliament: A Case Study from Bangladesh’
(2004) 6 New Zealand Journal of Asian Studies 27, 53.
70 id.
71 id.
72 Rounaq Jahan, The Elusive Agenda: Mainstreaming Women in Development (Zed Books
1995) 42 (cited in Halder (n 69) 53).
the same old scheme of indirect election.73 It was expected of the government
at the time of the nation’s democratic transition that they would formulate a
long-term plan to promote the status of women through systemic measures
and not just by reserving some seats for them in parliament.74 However, noth-
ing along that line happened.
The indirect election to the reserved seats by simple majority votes of di-
rectly elected members of parliament historically ensured control of these seats
by the party obtaining a numerical majority in the legislature.75 This mech-
anism encouraged excessive political dependence of the aspiring candidates
upon party leadership.76 Thus, the ruling party had the power to manipulate
its strength in the parliament by making women members from reserved seats
loyal to the party for their nominations.77
As a lucrative ‘vote bank’, the provision of reserved seats for women through
indirect election has been maintained by successive ruling parties or coalitions,
with no intention of uplifting the status of women in politics or national gov-
ernance. This system, for example, arguably helped the Bangladesh Nationalist
Party (BNP) in 1991 and the Awami League (AL) in 1996 to form single-
party governments.78
The provisions reserving thirty seats for women lapsed again in 2000,
requiring another round of constitutional amendment for its continuance.
By that time, several women’s organisations and other civil society organi-
sations hosted several seminars and workshops to press their demand for
legal reform concerning women’s seats in parliament. They specifically de-
manded a direct election in those reserved seats, among others. However,
disregarding all these demands, the ruling party, AL, introduced a Consti-
tution Amendment Bill in June 2000 proposing the continuation of thirty
reserved seats for women for another ten years. Amid political fiasco and the
boycotting of parliament by the then opposition, BNP, the Bill, however,
did not pass the House.79
Following the 2001 elections, the BNP came to power. As the party (BNP)
had won more than two-thirds of the seats in parliament and formed a coa-
lition government with a fundamentalist party, Jamaat-e-Islami Bangladesh,
it supposedly did not need any support from the ‘vote bank’ of women.80
73 The Constitution (Tenth Amendment) Act 1990.

74 Galina Negrustueva, ‘Women in Structures of Political Power’ in Bharati Ray (ed), Women in
Politics: France, India and Russia (KP Bagchi & Company 2000) 131, 133.
75 The House of the Nation (Reserved Seats for Women) Act 2004 (Act No. 30 of 2004).
77 ibid.
78 Nizam Ahmed, ‘In Search of Institutionalisation: Parliament in Bangladesh’ (1998) 4 J of
Legislative Studies 34; IDEA, State of Democracy (International Institute for Democracy and
Electoral Assistance 2001) (cited in Haldar (n 69) 53).
79 Halder (n 69) 55.
80 ibid.
206 Psymhe Wadud
Perhaps because of that background scenario, there were initially no seats re-
served for women in the eighth parliament.
Finally, the scheme of reservation was reinstated in 2004, and the number
of seats was increased from thirty to forty-five for another ten years, through
the Constitution (Fourteenth Amendment) Act 2004. The 14th Amendment
entitled all political parties to have all forty-five reserved seats allocated to
them proportionately.81 In 2011, the seats were further increased to fifty.82 In
2018, by the 17th Amendment, the tenure of the scheme of fifty reserved seats
for women was extended to the next twenty-five years.83
Women’s under-representation and democracy: are some citizens more

equal than others?
After all these years and despite women in top political positions, the mode
of nomination for reserved seats and the nature of the representation remains
unchanged, signaling that women’s legislative empowerment still is a second-
ary concern.84
Representative democracy requires the electorate to be connected to those
elected85 so that the power which derives from the people is the same power that
the government exercises. One method of achieving that connection is by ensur-
ing the equal participation of all citizens.86 Ideally, a democracy is supposed to treat
all its citizens equally and place vulnerable groups and minorities at its centre, and
not at the margins.87 Inclusivity and representation are key criteria of democracy
and, therefore, it is imperative that minorities, whether defined by gender, ethnic-
ity, region, socioeconomic status, or education, have a voice in the decision-mak-
ing process.88 Therefore, it might be expected that women, as a difused minority,
would be more represented in countries with entrenched democratic processes.89
81 The Amendment provided for proportional representation (implying allocation of the reserved
seats in proportion to the votes secured by each political party) through a single transferable
vote. See the Jatiya Sangsad (Reserved Seats for Women) Election Act 2004, schedule 1.
82 The Constitution (Fifteenth Amendment) Act 2011.
83 The Constitution (Seventeenth Amendment) Act 2018.
84 Begum (n 67) 180.
85 AV Dicey, An Introduction to the Law of the Constitution (MacMillan Press 1960, reprint
1970) 84.
86 Deborah Cass and Kim Rubenstein, ‘Representation/s of Women in the Australian Con-
stitutional System’ in Kim Rubenstein (ed), Traversing the Divide Book Subtitle: Honouring
Deborah Cass’s Contributions to Public and International Law (ANU Press 2021) 195.
87 Alexandra Dobrowolsky and Vivien Hart (eds), Women Making Constitutions: New Politics
and Comparative Perspectives (Palgrave Macmillan 2003) 186. See also, Tracy-Ann Johnson-
Myers, The Mixed Member Proportional System: Providing Greater Representation for Women?
A Case Study of the New Zealand Experience (Springer 2017).
88 Pippa Norris, ‘The Impact of Electoral Reform on Women’s Political Representation’ (2006)
41 Acta Politica 197 (cited in Johnson-Myers (n 87)).
89 Melanie M Hughes and Pamela Paxton, ‘The Political Representation of Women over Time’
in Susan Franceschet, Mona Lena Krook and Netina Tan (eds), The Palgrave Handbook of
Women’s Political Right (Palgrave Macmillan 2019) 44.
Bangladesh’s Constitution provides for representative democracy as one of

its four foundational core norms.90 However, as seen previously, there contin-
ues to be an under-representation of women in the legislature, which means
that no challenge is made to the status quo of the imbalance in men’s represen-
tation.91 The imbalance appears normal and is arguably considered inevitable
by the body politic and the political parties.
Thus, what we see in Bangladesh is the paradox of representative democ-
racy, in which men and women are formally represented, but the social power
and the politics render some citizens (‘the men’) more equal than others (‘the
women’).92
Conclusion
Constitutions are not only about crafting political rules, rights, and institu-
tions93 but are also about encapsulating a country’s highest ideals.94 They are
intended to stand above everyday politics, authorising the rules of the game
and legitimating the processes and outcomes of governments.95 The lack of
gender sensitivity in constitutional text and interpretation, therefore, can
militate against the high ideals that a constitutional scheme should ideally
carry.
While the constitution-making process cannot be revisited and changed in
retrospect, the present and future interpretations can surely be made more
gender-conscious. The legislature and the judiciary can remedy the original
deficiencies by, for example, making gender-sensitive laws, accommodating
women in decision-making processes, and adopting a gender-transformative
legal as well as constitutional interpretation. For the judiciary, the first step
towards achieving a substantive-equality jurisprudence is to recognise that
value-neutral positivist approaches are not the answer.96 The subordination
of women is so deeply embedded in the societal psyche that only a categori-
cal critique of sexist practices and patterns, going beyond the positivistic le-
gal interpretations, can provide an impetus for change.97 It is significant for
the judiciary to break through the public-private dichotomy and advance a
gender-conscious jurisprudence based on sex equality across the spheres. For
90 See the Constitution, preamble and art. 11. See also Abdul Mannan Khan v Bangladesh
(2012) 64 DLR (AD) 1.
91 Cass and Rubenstein (n 86) 198.
92 Iris Marion Young, ‘Polity and Group Diference: A Critique of the Ideal of Universal Citizen-
ship’ (1989) 99 Ethics 250 (cited in Margaret Thornton, ‘Embodying the Citizen’ in Mar-
garet Thornton (ed), Fragile Frontiers: Feminist Debates around Public and Private (Oxford
University Press 1995) 259).
93 Dobrowolsky and Hart (n 87) 2.
94 id.
95 id.
96 Ann E Freedman, ‘Sex Equality, Sex Diference, and Supreme Court’ (1983) 92 Yale Law
Journal 913, 962.
97 ibid 965.
208 Psymhe Wadud
the legislature, making protective and ameliorative laws for women based on
the constitutional principle of equality is imperative.
With regard to women’s participation in politics, it is significant to empha-
sise intra-party democracy. If a party is not inclusive, it cannot be expected to
nurture the values of inclusivity in governance and politics.98 The law should
obligate political parties to nominate women candidates for elections and fos-
ter women’s participation in politics more generally.99
Lastly, no constitution by itself can alter the attitudes of diferent actors
towards gender equality. At times, informal and unwritten rules and prac-
tices underpin legislative and judicial behaviours. For women to be counted
as constitutional subjects (that is, within ‘we, the people’), all unwritten rules
or practices that relegate the women’s position to subordination should (or
ought to be) be discarded.
98 Rounaq Jahan, Political Parties in Bangladesh: Challenges of Democratization (Prothoma

Prokashan 2015) 3.
99 Some urge for a women quota of 30–35 percent as a requirement for all political parties. See
Begum (n 67) 190.
13 Justice as fairness and the
Constitution of Bangladesh
Tashmia Sabera and Naveed Mustahid Rahman
Introduction
Socialism is one of the four founding principles of the Constitution of Bang-
ladesh, enshrining the nation’s goal of attaining a ‘just and egalitarian society
through the democratic process’. To understand what the Constitution means
by ‘socialism’, we must begin by exploring its provisions relating to the dis-
tribution of resources, consisting of both property and opportunities. The
qualified nature of the constitutional right to property in Bangladesh can be
viewed as providing an avenue for state-imposed redistribution of property.1
However, as the state lacks any ofcial policy for a robust redistribution of
property, it can be argued that its philosophy of social justice is not conso-
nant with a Marxist or a similar conceptualisation of socialism. Even though
socialism and related terms like ‘exploitation’ and ‘means of production’ may
have found their way to the Constitution because of the influence of Marxist
theories at the time of its adoption, it can be demonstrated that the framers
were not committed to realising a Marxist redistribution of ownership.2 In
this chapter, we argue that the form of equality or socialism envisioned by the
Constitution is more consistent with John Rawls’ theory of justice.
There is widespread agreement among political philosophers that John
Rawls has been one of the most influential political thinkers of the last century,
and his political theory has perhaps influenced contemporary liberalism more
than any other theory.3 This theory, which Rawls calls ‘justice as fairness’, can
be briefly discussed here. From a hypothetical original position, two principles
of justice emerge according to Rawls. The first principle provides that every-
1 Article 42 of the Constitution of Bangladesh (hereafter ‘the Constitution’).

2 In his Constituent Assembly deliberations on the Constitution Bill on 10 April 1972, Sheikh
Mujibur Rahman, the then prime minister, expressed his vision of a form of socialism that
would be appropriate for the sociopolitical climate of Bangladesh as opposed to following any
borrowed concept of socialism from foreign sources. See also Sumanta Banerji, ‘Bangladesh’s
Marxist-Leninists – II’ (1982) 17(33) Economic and Political Weekly 1311.
3 Martha C Nussbaum, ‘Conversing with Tradition: John Rawls and the History of Ethics’
(1999) 109(2) Ethics 424.
DOI: 10.4324/9781003276814-17
210 Tashmia Sabera and Naveed Mustahid Rahman
one beyond the veil of ignorance would share a fundamental interest in the
protection of the fundamental freedoms or liberties (civil and political rights)
of all. The second principle has two parts – first, fair equality of opportunity
has to be ensured for all ofces and positions, and second, all financial policies
and the basic structure of the state should work to benefit the least advantaged
individuals or groups within the society. The latter is known as the ‘diference
principle’ and is the crucial part of Rawls’ theory dealing with socioeconomic
issues. The original position is a thought experiment in which everyone is
placed behind a ‘veil of ignorance’ where they are unaware of their features
like race, ethnicity, religion, gender, etc. but retain the capacities to reason and
to plan for a good life. As no one can be sure that they would not end up in the
least advantaged section of society owing to race, gender, etc. in the original
position, they would all opt to maximise the benefits provided to these worst-
of groups by the basic structure or apparatus of the society. This theory is,
hence, firmly situated within the social contractarian tradition, the same tradi-
tion of political philosophy to which constitutionalism also owes its origins.
The compatibility of Bangladesh’s constitutional understanding of socialism
with Rawlsian egalitarianism can be established if at least two requirements
are met. The first condition is that the Constitution protects the fair equal-
ity of opportunity, limits rights to property, maximises benefits to all citizens,
promotes progressive taxation, and provides a system of governance that is in
terms with the framework of the theory. Second condition is that, the con-
stitutional approach towards economic and social rights should be consistent
with the Rawlsian approach. In this chapter we examine to what extent the
Constitution of Bangladesh (hereafter ‘the Constitution’) is consonant with
these criteria. We begin by discussing the definition of socialism and other
key terms as adopted in the Constitution in the second section of the chapter.
Following that, we argue that the non-justiciability of the economic and social
rights found in the design of the Constitution is consistent with the require-
ments of Rawls’ theoretical framework, which does not require the realisation
of basic necessities through judicial mechanisms. However, as a real commit-
ment towards providing the material needs of the people protected by these
rights are absent in the state practice of Bangladesh, we urge meaningful leg-
islative and administrative actions on this front of economic and social rights,
which would complement the Rawlsian framework of justice and also deliver
on the fundamental constitutional goal of socialism.
In the next section, we analyse the relevant constitutional provisions to
show that the Constitution adopts Rawlsian fair equality of opportunity. We
also discuss the diference principle in this section and demonstrate that al-
though this principle is well incorporated in the Constitution, it has never
been applied by other laws for benefiting the least advantaged groups of so-
ciety. We explore the nature of the right to property in the constitutional
framework and argue how limited property rights are compatible with the
Rawlsian framework in the fifth section. Next, we argue that the absence of a
redistributive mechanism in the Constitution and the presence of progressive
Justice as fairness and the Constitution of Bangladesh 211
taxation in legislation as well as constitutional jurisprudence provide scope for

attaining Rawlsian egalitarianism. However, how far such legislative measures
are adequately creating such a framework remains an open question, and we
believe there is still ample room for the development of a progressive taxation
system in Bangladesh. Finally, we compare the coexistence of socialism with
democracy in the Constitution with the Rawlsian idea of justice. We claim that
for the prioritisation of liberty in Rawls’ theory, this democratic socialism is the
most suitable system of governance.
Socialism as defined in the Constitution

The framers of the Bangladeshi Constitution envisioned a version of social-
ism without major changes to the basic structure of the state inherited from
British India, via Pakistan, to ‘progressively’ realise a more equal or socially
just society. In other words, they put their faith in existing market institutions
and processes, wishing by adhering to liberal principles and democratic prac-
tices, to attain the goal of an equal and just society. Political liberalism, which
emphasises freedom, or civil and political rights, can thus be argued to be the
guiding philosophy of the Constitution.
Regarding the intention of the framers of the Constitution concerning
the valence and status of socialism and distributive justice, recourse should
be taken in the first place to the debates in the Constituent Assembly, where
the issue of socialism was debated at some length. Sheikh Mujibur Rahman,
the leader of the house, in his closing speech to the Assembly spoke about
diferent versions of socialism chosen by diferent countries, mentioning the
diverging paths undertaken by the former Union of Soviet Socialist Repub-
lics (USSR), the People’s Republic of China, and erstwhile Yugoslavia, and
he emphasised the importance of a strong democracy and democratic in-
stitutions for gradual realisation of socialism in Bangladesh.4 We also know
of his preference for ‘socialism’ from his observations on visiting Mao Tse
Tung’s China, as discussed by Jahan.5 Mujib wrote about how the peasants
in China were being emancipated and expressed his wish to emulate it for
the peasants of his country. But Sheikh Mujib’s Awami League was not an
out-and-out leftist party. On the whole, the Constituent Assembly was un-
evenly composed, with only one opposition member and a few independents
elected in the provincial and national elections of 1970. These opposition
and independent members mostly belonged to parties inclined to the left of
the majority party Awami League. Opposition member Suranjit Sengupta
pushed for more radical socialist provisions in the Constitution but had little
4 M Abdul Halim (ed), The Bangladesh Constituent Assembly Debate (Bangladesh Gonoporishod
Bitorko) (CCB Foundation 2014) 962.
5 Rounaq Jahan, ‘Political Philosophy of Bangabandhu’, Dhaka Tribune (Dhaka, 10 June
2019).
traction in the Assembly dominated by the Awami League. The foundational

history of the Constitution, thus, demonstrates that the framers intended
socialism to mean the economic and social rights of the people being gradu-
ally implemented instead of radically redistributing ownership of property or
nationalising the means of production.
Article 8 and the preamble recognise socialism as one of the fundamental
principles of the Constitution. The definition of socialism in article 10 pro-
vides three clarifications regarding its nature. First, it describes the end or
aim of socialism as achieving an egalitarian society. Second, such an egalitar-
ian society as conceptualised shall be ‘free from exploitation of man by man’.
Third, as the preamble reinforces, the exploitation-free egalitarian society shall
be realised through the democratic process. Although the term ‘exploitation’
has not been defined in the Constitution, article 14 provides that the state is
duty-bound to emancipate the toiling mass, the peasants, workers, and back-
ward sections of the people from all forms of exploitation. A literal or textual
interpretation of the Constitution, thus, provides that the ultimate goal of
socialism, which is a fundamental aim of the state, is to achieve egalitarianism,
and the egalitarian society realised would be one free from exploitation of man
by man. It can be reasonably assumed that the term ‘exploitation-free society’
is one inspired by Marxist ideas.
Furthermore, the term ‘ownership of means of production’ in article 13 is
inspired and influenced by Marxist literature. However, these terms are used
only in a rhetorical sense and do not bear a commitment to the Marxist politi-
cal ideology of state-controlled comprehensive redistribution of property, as
can be understood from a plain reading of the property rights and regulations
contained in the Constitution.6 Apart from providing private ownership of
property along with state and cooperative ownership, the Constitution does
not mandate redistribution of property to efect a radical transformation of
class relations or the nature of the economic system based on capitalist market
institutions in any significant way.
Rawls does not engage with the concept of exploitation in his book, per-
haps because the two principles of justice emanating from his original posi-
tion would not permit the ‘exploitation of man by man’. The first and second
principles would proscribe exploitation a priori, as it would severely violate the
exploited individuals’ right to access the social bases of self-respect and victim-
ise the underprivileged sections of the population. Exploitation fundamentally
militates against equality and other liberal rights, and the diference principle
would be meaningless if one class of individuals or the worst-of sections of
the population were allowed to be exploited by the privileged classes. More
generally, as the framers of the Constitution intended to protect the rights
6 Shahdeen Malik, ‘Liberation War and the History of Making and the Enactment of the Consti-
tution of Bangladesh’ (in Bangla) in Ahmed Javed (ed), The Constitution of Bangladesh: Various
Issues (in Bangla) (Anyaprokash 2020) 182.
to property in a market economy, while gradually working towards the goal

of realising the economic and social rights of all citizens through democratic
processes instead of a dictatorship of the proletariat, their vision of socialism
resembles political liberalism – and one largely consonant with Rawls’ egali-
tarian philosophy, because both principles of justice are consistent with the
constitutional design in Bangladesh, as the following sections will show more
clearly.
Status of economic and social rights

The distinction in the normative and legal status between civil and political
rights and the economic and social rights found in the Constitution, with the
former granted lexical and normative priority, is more consonant with Rawl-
sian liberalism and discordant with Marxist socialism. The diference principle
mandates that ‘social and economic inequalities should be evaluated in terms
of how well of they leave the worst of’.7 Rawls’ theory takes no position on
whether the economic and social rights have to be made judicially enforce-
able or not, but it does mandate that the economic and social institutions of
the state, which is part of its basic structure, are arranged in a way to benefit
the worst-of group of the society. As making these rights judicially enforce-
able would require courts to take significant budgetary decisions, which are
plausibly best left to the legislature, it can be argued that the current status of
economic and social rights in the Bangladeshi constitutional design is more
reflective of Rawlsian philosophy.
However, Bangladesh has done little to implement social and economic
rights of the least advantaged sections of the population, either through leg-
islative measures or otherwise.8 A better constitutional approach could have
been the adoption of a specific provision making it compulsory for the state
to provide welfare benefits to citizens, especially those who are disadvantaged,
through regular policy interventions. Socialism, as one of four fundamental
principles of the state, could perhaps be used to fill this constitutional gap.
The four fundamental principles of the state including socialism are elabo-
rated in Part II of the Constitution, which also contains most economic and
social rights found in the International Covenant on Economic, Social, and
7 Philippe Van Parijs, ‘Diference Principles’ in Samuel Freeman (ed.), Cambridge Companion to
John Rawls (CUP Press 2003) 200.
8 Haque has argued that economic and social rights are not positively but negatively enforceable
in the Constitution of Bangladesh, as no laws can be made that are inconsistent with these
rights. However, he notes that the present constitutional trend favours judicial enforceability
of these rights, as this chapter will also show. See Muhammad E Haque, ‘Justiciability of
Economic, Social and Cultural Rights under International Human Rights Law’ (2021) 32(1)
Dhaka U Law J 39, 54; ‘Legal and Constitutional Status of the Fundamental Principles of
State Policy as Embodied in the Constitution of Bangladesh’ (2005) 16(1) Dhaka U Law J
45, 80.
Cultural Rights 1966. Although articles 10, 13, 14, and 19 discussed before
are not judicially enforceable per article 8(2), because they are only state policy
principles, a strong constitutional case can be made for the provision of much
stronger material support to the least advantaged groups in society than is
currently the case.
The legal status of these unenforceable policy provisions in the Constitu-
tion has been examined by the Supreme Court. There is established juris-
prudence that supports the creative use of these principles as an aid to the
interpretation of enforceable constitutional rights. For example, in Ain O
Shalish Kendra v Bangladesh,9 the Court was moved with a petition regard-
ing the forced eviction of slum-dwellers. The Court held that the eviction
without making alternative arrangements violated the slum-dwellers’ right
to livelihood. The right to livelihood relied upon by the Court in Ain O
Shalish Kendra did not exist per se in the Constitution. The Court, there-
fore, used the enforceable rights to life and equality to uphold the dignity
of slum-dwellers.10 Most issues of distributive justice can draw on the same
enforceable provisions of the right to life and formal equality. In the same
vein, in Abdul Awal v Bangladesh,11 the High Court Division of the Su-
preme Court ruled that a tax surcharge for income over a threshold was not
violative of equality principles, but rather was necessary to realise the goal
of an egalitarian society enshrined in article 10. Notably, the Court made
several allusions to socialism as a fundamental state principle, in this case,
to arrive at its ruling.
In the Constituent Assembly, the opposition member Suranjit Sengupta
was a vocal proponent of justiciable economic and social rights. Rawls’ sec-
ond principle provides that financial matters in society must be arranged in a
way that maximises the benefits to the least privileged sections of society. It
can be argued that judicial enforcement of economic and social rights could
work towards this goal of maximising benefits to the least privileged groups,
as Sengupta seemed to have believed. However, this goal can also be achieved
without the economic and social rights being made judicially enforceable,
through administrative processes, specific legislative interventions, and other
more creative ways. From the speech of Tajuddin Ahmad, the deputy leader
of the Constituent Assembly, it appears that that position was indeed what the
framers had intended.12 Therefore, the concept of socialism adopted in Bang-
ladesh’s Constitution and the overall constitutional design is largely consistent
with Rawls’ theory. To be consistent with Rawls’ approach, we think it is not
necessary that these rights have to be made judicially enforceable, if other av-
enues are made for their implementation on a priority basis, either by judicial
or administrative processes.
9 (1999) 19 BLD (HCD) 488.

10 The Constitution, arts. 32 and 27.
11 (2017) 69 DLR (HCD) 533.
12 Halim (n 4) 421.
Fair equality of opportunity under the constitutional

framework
One way to establish the compatibility of the constitutional idea of socialism
with Rawlsian egalitarianism is to show that the principle of fair equality of
opportunity has been accommodated in the Constitution. The Constitution
guarantees equality of opportunity in two ways. First, it promises the citizens
equal opportunity in employment or services of the republic.13 This general
recognition comes with a non-discrimination clause that prohibits discrimina-
tion based on arbitrary grounds such as religion, race, caste, sex, or place of
birth.14 Despite the prohibition of discrimination, special provisions can be
made in favour of the ‘backward sections’ of citizens for their adequate repre-
sentation in the service of the republic. This principle of positive discrimina-
tion is a constitutionally recognised right and can, therefore, be enforced by
the Court.15 The Court justified the special provision clause on the ground
that equal treatment of the unequals can result in further inequality.16 There-
fore, as the Court observed, afrmative action in favour of certain classes of
people should be based on ‘reasonable classifications’. Whether a classification
meets the standard of reasonableness depends on a two-tier test developed by
the Supreme Court. First, the classification must be based on an intelligible
diferentia and, second, the diferentia must have a rational connection to the
objectives sought to be achieved by the statute in question.
Although the wide-ranging quota system in the recruitment of public sector
employees, which existed from 1972 to 2018,17 was grounded on the special
provision clause, how far the classes of people availing the quotas met the intel-
ligible diferentia and could be considered to be members of ‘backward-sections’
is debatable. In Zainal Abedin v Bangladesh,18 the Court found the quota for
freedom fighters’ family members to be beyond the scope of article 29. Criti-
quing the decision as a ‘bookish’ (positivist) approach to the constitutional pro-
vision supporting afrmative actions, Chowdhury defended this quota provision
based on the contribution of freedom fighters to the country’s independence.19
However, he failed to show any nexus between backward sections of citizens
13 The Constitution, art. 29 (1).

14 ibid art. 29 (2).
15 The Constitution, arts. 44 and 102.
16 Sheikh Abdus Sabur v Returning Ofcer (1989) 41 DLR (AD) 30.
17 After independence, Bangladesh adopted its first recruitment policy of government services in
1972 (the Interim Recruitment Policy, 1972) with an afrmative action scheme that provided
quotas for backward districts, freedom fighters, and war-afected women. The afrmative ac-
tion scheme continued in civil service employment in the form of quotas for freedom fighters,
women, indigenous people, and people with disabilities pursuant to diferent executive orders
and rules. The quota system was abolished by a government notification dated 4 October
2018.
18 (1982) 34 DLR (HCD) 77.
19 M Jashim Ali Chowdhury, An Introduction to the Constitutional Law of Bangladesh (3rd edn,
Northern University Bangladesh 2017) 187.
and freedom fighters, and it can be argued that the Court’s approach of be-
ing ‘bookish’ does not constitute a valid criticism in itself. The other quotas
in government services in favour of women, indigenous peoples, and persons
with disabilities seem reasonable and they arguably meet the constitutional cri-
terion of ‘backward sections’. However, such quotas have never been reasonably
distributed or allocated to exclude the ‘creamy layer’ within these groups, a
doctrine introduced by the Indian Supreme Court as a safeguard against the
overuse of quota provisions.20 Apart from equal opportunity in public service
appointments, the unenforceable article 19 of the Constitution guarantees equal
opportunity for all citizens more generally. At the same time, the state has a duty
under article 19(2) to take efective measures to remove inequality and promote
the egalitarian goal as stated in the preamble of the Constitution.
Thus, the constitutional framework of equal opportunity largely corre-
sponds to Rawls’ idea of fair equality of opportunity. Rawlsian equality does
not allow discrimination based on arbitrary grounds as he argues that no rea-
sonable person would condone such arbitrariness behind the veil of ignorance,
being unaware of their position in society. Rawls further proposed his difer-
ence principle to allow discrimination, only if it results in delivering benefits
to the least advantaged class in society. From a plain reading, the terms ‘back-
ward’ in the Constitution and ‘least-advantaged’ in Rawls’ idea may appear
to have similar meanings. However, a deeper consideration would suggest
that there is a crucial diference between the two. While the term ‘backward’
focuses only on the position of a class of people in society, the term ‘least ad-
vantaged’ acknowledges the connection between such position and external
factors, social or natural, for which the person is not responsible. In other
words, the Rawlsian diference principle protects people from arbitrary disad-
vantages as no one deserves to be disadvantaged, be it social or natural.
The Rawlsian fair equality of opportunity can provide a consistent philo-
sophical basis for the equal opportunity clauses of the Bangladeshi Consti-
tution. However, the diference principle becomes more complicated at the
application level when the groups of least-advantaged people are to be distin-
guished. To make Bangladesh’s afrmative action regime more harmonious
with the Rawlsian philosophy, the term ‘backward section’ needs to be defined
clearly and precisely. Moreover, such backward sections of people should not
be based on an arbitrary classification of people. At the same time, it should
cover the least advantaged sections of the concerned society, economically and
otherwise. Abolition of the quota system, as efected in 2018, in the services of
the republic does not help attain a Rawlsian framework of distributive justice.
Rather, allowing diferent measures for the least advantaged groups in society
can play a vital role in the successful application of the notion of fair equality of
opportunities. Finally, the fair equality of opportunity should also be expanded
20 The doctrine of ‘creamy layer’ was applied by the Indian Supreme Court in Indra Sawhney v
Union of India (1993) AIR SC 477.
beyond the services of the republic to include all ofces and positions in the
country to comply with Rawlsian egalitarianism more fully.
Ownership, right to property, and equal liberty

Rawlsian fairness neither prescribes the right to private property in an absolute
sense nor supports the curtailment of such right to the extent that it disregards
basic human liberty. Instead, Rawls promotes an idea of the property where it
is used as a means to achieve the end of rationality and reasonableness, which
are essential moral powers of a just society.21 Moreover, Rawls argues for the
widespread dispersal of property in productive resources such as capital assets,
manufactured means of production, and natural resources for the sake of at-
taining equality by realising the diference principle.22 Overall, a combination
of private and collective ownership is necessary for incorporating the principles
of a just society.
The Constitution of Bangladesh takes a similarly moderate approach to
ownership and the right to property. Article 13 recognises a wide range of
manners of ownership of the instruments and means of production. Firstly,
the Constitution establishes the principle of state ownership on behalf of the
people, through the nationalisation of key sectors of the economy. Secondly,
it recognises co-operative ownership. Thirdly, it recognises private ownership.
Recognition of these diverse forms of ownership in a purportedly socialist
constitution gave occasions for wide criticism. Billah attacked this loose con-
stitutional approach to ownership on the ground that it fails to appreciate
essential diferences in the concepts of ownership in socialist and democratic
systems.23 In his view, a socialist system focuses on state-controlled means of
production whereas democracy prefers private ownership. However, this sim-
plistic binary can be disputed as there exist many diferent conceptualisations
of both socialism and democracy. The Constitution does not conform to either
category in this binary. The Constituent Assembly justified the Bangladeshi
approach by referring to constitutions of other states including the People’s
Republic of China.24 Therefore, instead of providing a form of ownership that
collectivises all private property, the Constitution aims to bring together dif-
ferent forms of ownership.
This corresponds to the first principle, which neither requires absolute state
ownership to create an egalitarian society nor promotes a libertarian form of
private ownership. Ownership of property, like other issues of distributive jus-
tice, can be curtailed so far as it aims at the advantage of the worst-of groups
21 John Rawls, Political Liberalism (Columbia University Press 2005).

22 Quentin P Taylor, ‘An Original Omission? Property in Rawls’s Political Thought’ (2004) 8(3)
Independent Rev 100.
23 SM Masum Billah, The Politics of Land Law: Poverty and Land Legislation in Bangladesh (PhD
Thesis, Victoria University of Wellington 2017).
24 Halim (n 4) 430.
in society. Apart from this, people generally will enjoy equal liberty and no
discrimination will be made based on any arbitrary grounds.
Article 42, read with article 27, can be interpreted as a recognition of
the property rights of all citizens. However, in our view, the Constitution
implicitly excludes women from their equal right to inherit property by con-
fining the interpretive scope of the equality clause to state and public life.25
In this way, the discriminatory inheritance laws in the realm of private law
continue to prevail under various personal law regimes, resulting in diferent
treatment of women based on the arbitrary ground of sex.26 However, while
the conventional interpretation confines the application of article 28 to state
and public life, a more creative and liberal interpretation may be possible.27
In the same way, indigenous peoples have been excluded from their prop-
erty rights as article 13 implicitly excludes the traditional concept of native
land (common property) of indigenous peoples.28 Non-recognition of the
traditional concept of land, in general, is seen as a violation of the right to
the land of the indigenous peoples.29 The constitutional approach to land
in Bangladesh has resulted in the deprivation of the collective land rights of
indigenous people.
Interestingly, both women and indigenous peoples are groups that are
regarded as backward sections in society. The quota system of government
services, though now abolished, recognised these two groups as deserving
quotas in government services. If the Rawlsian diference principle is applied
to these two situations, a diferential treatment should be allowed only to give
advantage to the least advantaged groups in society. Therefore, the exclusion
of women or indigenous peoples from their right to property goes against the
spirit of Rawlsian justice as fairness. For a more consistent approach to social
justice, the legal and constitutional interpretations should recognise the equal
right to property of women and indigenous peoples, among others.
Progressive taxation
Redistribution of income and wealth is one of the most important issues for
realising egalitarianism in society. Rawlsian diference principle encourages re-
distribution by way of progressive taxation as opposed to radical redistribution
25 Article 28(2) of the Constitution provides that ‘[w]omen shall have equal rights with men in
all spheres of the State and of public life’.
26 See generally M Mahbubar Rahman and Willem van Schendel, ‘Gender and Inheritance of
Land: Living Law in Bangladesh’ in Jan Breman, Peter Kloos and Ashwani Saith (eds), The
Village in Asia Revisited (OUP 1997) 237.
27 Psymhe Wadud, ‘Women and a National Imagery’ in Mohammad Shahabuddin (ed), Bangla-
desh and International Law (Routledge 2020) 261.
28 Farhad Mazhar, Constitution and Democracy (in Bangla) (Aagami Prakashani 2007) 369.
29 Cindy Holder, ‘Indigenous Rights to Land’ in Deen K Chatterjee (ed), Encyclopedia of Global
Justice (Springer 2011) 534.
by abolishing the right to private property.30 The Constitution of Bangladesh

does not contain any express policy of redistribution. However, it does not ap-
prove of abolishing private property for materialising socialism in the country.
Rather, the domestic laws and the constitutional jurisprudence permit a pro-
gressive taxation scheme and entrench a right to private property, including
the means of production.
Although the Constitution adopted socialism as a fundamental principle,
it abstained from providing a framework for the redistribution of property.
Article 19 provides that one of the goals of the Constitution is the removal of
social and economic inequality and to ensure equitable distribution of wealth
among citizens. Whether equitable distribution means redistribution of prop-
erty is again debatable. However, neither the Constituent Assembly nor the
Court has attempted to interpret the term ‘equitable distribution’. On the
other hand, article 13 of the Constitution approves private ownership of prop-
erty, which can be restricted under article 42, which provides scope for acqui-
sition, nationalisation, and requisition of property by authority of law. Despite
this scope, some members of the Constituent Assembly argued that private
property is inconsistent with socialism and, therefore, should be removed. In
response, Syed Nazrul Islam referred to the constitutions of the USSR and
Yugoslavia which, despite being socialist, did not abolish private prop-
erty.31 However, he assured that the limit to owning property by private
individuals will be determined by parliament from time to time. Suranjit Sen-
gupta objected to leaving the matter to parliament instead of setting limits at
the time of making the Constitution. Citing the USSR example, he advocated
for providing a ceiling of private ownership of immovable property.32 However,
the Assembly did not accept such a proposal and left the matter to be decided
by ordinary law.33
To substantiate the plausibility of the coexistence of private property and
socialism, Prof Abu Sayeed referred to the erstwhile constitutions of Czech-
oslovakia and the German Democratic Republic.34 Dr Kamal Hossain, the
chairman of the Constitution Drafting Committee, also defended the form of
socialism incorporated in the draft Constitution by contrasting it with China.35
Unlike China, Bangladesh’s Constitution does not recognise capitalist owner-
ship. Moreover, like other socialist systems, Bangladesh has the power to take
away property upon the payment of compensation, the adequacy of which was,
however, made unassailable in courts. Article 42 provided that the amount of
compensation provided by that state for the acquisition and requisition of
30 John Rawls, A Theory of Justice (Harvard University Press 1999) 246.

31 Halim (n 4) 106.
32 ibid 499.
33 Currently, a person can hold up to sixty bighas of land for personal use with scope for holding
additional land in exceptional situations. See the Land Reforms Ordinance 1984, section 4.
34 Halim (n 4) 134.
35 ibid 499.
private property cannot be questioned in any court. However, the Assembly

did not touch on the question of redistribution of property.
However, one of the major obstacles to utilising the restriction of the right
to property in the Bangladeshi Constitution in favour of creating an egalitar-
ian society is its silence on the purpose of acquisition or requisition. Whether
the acquisition and requisition of land should be done for a public purpose
or not is unclear as article 42 does not establish any necessary connection be-
tween land acquisition or requisition and the end of public purpose.36 Along
the same line, the doctrine of public purpose was not acknowledged by the
constitutional jurisprudence to reflect land reform.37
Although the Constitution does not promote redistribution of property
expressly or impliedly, it makes way for progressive taxation. In Abdul Awal,
the Supreme Court interpreted the Constitution for justifying taxation meas-
ures by way of imposition of surcharges.38 In this case, the issue of imposition
of surcharge was challenged. The plaintif questioned the validity of section
61 of the Finance Act 2011 on the ground that it violated the equality clause
of the Constitution. It also challenged the validity of providing exemption to
rich companies against the imposition of additional taxes by way of surcharge.
The Court held that the imposition of additional taxes by way of surcharge, in
general, is compatible with the constitutional framework that envisages an
egalitarian society. The imposition of a surcharge on individuals whose net
worth is more than 20 million takas is, therefore, constitutionally valid. On
the other hand, why the rich companies are excluded from the mechanism is
a matter of government policy on which the Court does not have jurisdiction.
In sum, the constitutional framework allows the curtailment of private
property rights but does not aim at the redistribution of property. On the
other hand, a form of progressive taxation is found in the jurisprudence de-
veloped under the Constitution. Rawls’ philosophy, in the same way, does
not advocate for redistribution of property to attain egalitarianism but pre-
fers the imposition of progressive taxation for materialising the diference
principle. In this way, the constitutional framework of Bangladesh falls more
in line with the Rawlsian understanding of distributive justice, although in
a limited way.
Democratic socialism and Rawlsian fairness

As stated in the introduction, the compatibility between the constitutional
understanding of socialism and Rawlsian fairness depends not only on the
provisions relating to equal distribution but also on its deep connection to
36 Mahmudul Islam, The Constitutional Law of Bangladesh (3rd edn, Mullick Brothers 2012)
378.
37 Billah (n 22).
38 (2017) 69 DLR (HCD) 533.
the governance system prescribed by the Constitution. The Constitution

commits to both democracy and socialism, listing them among its four fun-
damental principles. Whether or not a constitution should provide guiding
philosophical principles for the governance or economic system of the state
has been debated within academia and beyond.39 The Constitution Drafting
Committee picked a side in this debate by providing the four fundamental
principles as the guiding philosophy of the Constitution. Unsurprisingly,
whether these principles deserve to be in the Constitution has subsequently
generated criticism. For instance, Abul Mansur Ahmad criticised the inclu-
sion of socialism as a fundamental principle in the Constitution as he be-
lieved it should rather be a principle of governance than a state policy.40 In
his view, securing proper democracy in the Constitution would be sufcient
to generate governance policies, which can include policies on redistribu-
tion. Moreover, he points out the dilemma political leaders of his time faced
regarding the mutual exclusiveness of socialism and democracy. He describes
how some leaders expressed their preference for democracy over socialism
and vice versa.
Most members of the Constituent Assembly agreed with the inclusion of
both socialism and democracy in the Constitution as fundamental state prin-
ciples. However, it can be noted here that the composition of the Constituent
Assembly heavily favoured the ruling party the Bangladesh Awami League.
Syed Nazrul Islam, a member of the Assembly, spoke of the long history of
the socialist agenda in the programme of the Awami League as a reason for the
inclusion of these two distinct principles together.41 He viewed democracy and
socialism as compatible ideas and believed the Indian experience could be taken
as a guiding example for the chosen approach. The coexistence of democracy
and socialism was identified as the most significant feature of the Constitution
by M Monsur Ali, another prominent leader of the Awami League.42 How-
ever, to mitigate the apparent inconsistency between the two principles, Syed
Amjad Hussain in the Assembly suggested that the democracy in Bangladesh
should be interpreted as a democracy of the exploited people.43 He expressed
his faith in the ultimate success of the combination of socialism and democracy
in Bangladesh because the representatives have positively established other
unprecedented examples during and after the liberation war. The sole voice
against combining socialism and democracy was that of Suranjit Sengupta.
In his view, the relevant provisions for socialism do not represent socialism
in a real sense. Moreover, the absence of guarantees for ‘true’ freedom of
39 KC Wheare, ‘What a Constitution Should Contain’ in Modern Constitutions (OUP 1975) 32.
40 Abul Mansur Ahmad, Fifty Years of Politics as I Saw It (in Bangla) (Khoshroj Kitab Mahal
1969) 619.
41 Halim (n 4) 99.
42 ibid 128.
43 ibid 138.
expression would not let democracy flourish either. Hence, according to him,
the Constitution failed to establish either democracy or socialism.44
If there can be doubts regarding the compatibility of a democratic sys-
tem with Marxist ideas, Rawls’ theory is built upon democratic consent and
its compatibility with principles of distributive justice. Certainly, democracy,
if understood in an absolute majoritarian sense, can work against provisions
that protect the socioeconomic rights of democratic minorities, but constitu-
tionalism itself is inimical to such absolute majoritarianism. The Constitution
provides limits to the absolute nature of property rights to advance the causes
of socioeconomic equality for people. Thus, the constitutional scheme of so-
cioeconomic justice is aligned with Rawls’ justice as fairness. Moreover, the
coexistence of democracy and socialism, as manifested in the Constitution, is
suitable with the Rawlsian idea of property-owning democracy, where a cer-
tain arrangement of property fosters democracy.45
Conclusions
The fifty-year constitutional journey of Bangladesh suggests that the terms used
in the original Constitution such as socialism, egalitarianism, and exploitation-
free society are, in efect, a constitutional rhetoric. Although these terms were
drawn from Marxist theory, they were not intended to bind the state into a
strict Marxist socio-politico-economic system. The actual vision of distribu-
tive justice is more consonant with Rawls’ theory of justice as fairness. In this
chapter, we substantiated this claim by analysing the Constituent Assembly
debates as well as the relevant constitutional provisions. We have elaborately
scrutinised socialism as conceptualised and defined in the Constitution and
found no real connection between it and any Marxist ideas of socialism.
The non-justiciability of economic and social rights per se does not disturb
the Rawlsian theory of justice. However, provisions for securing the primary
goods for the least advantaged groups in society should have been incorpo-
rated by the legislature to attain egalitarianism. We have also shown that the
Constitution largely incorporates the concept of fair equality of opportunity,
recognises a qualified concept of the right to property, and accommodates pro-
gressive taxation. All these analyses if taken together indicate a commitment
towards a Rawlsian vision of justice. Furthermore, the Constitution expressly
mandates a combination of democracy and socialism, which is compatible with
Rawls’ theory too.
However, a comprehensive adoption and application of such principles
within the formal legal framework of Bangladesh is still a task to be completed.
The Court can and is encouraged to take recourse to them to construct con-
stitutional arguments in support of distributive justice.
44 ibid 229.
45 Tilo Wesche, ‘The Concept of Property in Rawls’s Property-Owning Democracy’ (2013)
35(1) Analyse and Kritik 99.
We conclude that there is a room for a more robust juridical reading of the
social-welfare system in Bangladesh than the one that exists in the text of the
Constitution. The provisions found in the preamble and Part II on fundamen-
tal principles of state policy regarding socialism, exploitation, and the creation
of an egalitarian society can be used to enforce a much stronger distribution
of resources. The interpretive scope for a more creative use of fundamental
state principles already exists in Bangladesh’s constitutional jurisprudence. If
the argument that the distributive justice envisioned by the framers is consist-
ent with Rawls’ theory of justice, which is the core argument of this chapter, it
would automatically be incumbent upon the Court to provide much stronger
protection of socioeconomic rights to benefit the least advantaged people in
society.
14 Constitutionalism interrupted
or constitutionalism absent?
The divergence of Constitution
and politics in Bangladesh
Ali Riaz
Introduction
Bangladesh adopted the Constitution on 4 November 1972, less than a year
after the country emerged as an independent nation through a bloody war of
nine months. The Constitution came into efect on 16 December 1972. This
was a remarkable achievement considering that a constituent assembly took
less than a year to frame the Constitution. This was particularly important tak-
ing into account the experience of Pakistan of which the country was a part
until it proclaimed independence on 26 March 1971. Pakistan took more than
nine years to frame its first constitution after it was established in 1947. The
backdrop of the framing of the Bangladeshi Constitution notwithstanding, the
text laid out the state principles and adopted a Westminster-style parliamen-
tary system. A unicameral parliament was placed at the helm of the system of
governance. While the Constitution had some limitations such as the parlia-
ment’s ability to impose reasonable restrictions on some fundamental rights,
two points are worth mentioning: first, overall, it reflected the aspirations of
the people of Bangladesh who fought for a democratic system of governance
within Pakistan; second, it promised to make the Constitution the supreme
instrument in protecting the rights of the people. Ostensibly, this was an auspi-
cious beginning of constitutionalism in a newborn country.
Fifty years have passed since, and the country has undergone several changes
in the system of governance including two long episodes of military rule, the
Constitution was suspended (and later revived) on two occasions, and seventeen
amendments have been made to the Constitution. Importantly, during this past
half a century a divergence between the Constitution and governance and politics
has become easily discernable. Besides, there is a growing concern that the coun-
try is heading towards electoral hegemonic authoritarianism,1 as the 2022 report
of Bertelsmann Stiftung has described the country as a ‘moderate autocracy’.2
1 Ali Riaz, ‘The Pathway of Democratic Backsliding in Bangladesh’ (2021) 28(1) Democratiza-
tion 179.
2 Bertelsmann Stiftung, Bertelsmann Transformation Index 2022 <https://bti-project.org/
en/?&cb=00000> accessed 15 March 2022.
DOI: 10.4324/9781003276814-18
Constitutionalism interrupted or constitutionalism absent? 225
Premised on the understanding that having a constitution is a necessary

condition but not sufcient to practise constitutionalism, this chapter delves
into the practice of constitutionalism in Bangladesh. It discusses the diver-
gences between practice and the text of the Constitution and asks the ques-
tion of whether constitutionalism had been practised in Bangladesh since its
independence. There have been several instances of suspension of the Consti-
tution and digression from the letter and spirit of the text, including amend-
ments that were made to fit individual’s and the executive branch’s power
grabs. As such, the question is whether the periodic regression is a reversal of
constitutionalism or, alternatively, whether constitutionalism remained absent
throughout the history of the nation.
Cognisant of the fact that despite the term “constitutionalism” having a
long antecedent in political theory, there is no agreement on a precise defini-
tion, this chapter considers constitutionalism in the minimalist sense. Consti-
tutionalism is not only having a constitution that “consists of a set of norms
(rules, principles or values) creating, structuring, and possibly defining the
limits of, government power or authority”3 but also a combination of “norms
creating legislative, executive and judicial powers” as well as “impos[ing] sig-
nificant limits on those powers”.4 In this vein, constitutionalism is viewed as a
doctrine that governs the legitimacy of the actions of the government, but its
purview is broader than the domain of legality of these actions.5 The central
notion of constitutionalism is the idea that the government is not free to do
anything it wishes or desires, but instead, government authority is derived
from the people and should be limited by a constitution that clearly expresses
what the government can and can’t do.
Despite the expansive nature of the definition of the term, there are a few
elements that constitute the basics of constitutionalism. According to Henkin,
these are: popular sovereignty, rule of law, limited government, separation
of powers (checks and balances), civilian control of the military, police gov-
erned by law and judicial control, an independent judiciary, and respect for
individual rights and the right to self-determination.6 Barnett, on the other
hand, ofers three criteria of constitutionalism: limitation of power (limited
government), separation of powers (checks and balances), and responsible and
accountable government.7 Drawing on these elements, this chapter will assess
3 Wil Waluchow, ‘Constitutionalism’ in The Stanford Encyclopedia of Philosophy (Spring 2018 edn, Ed-
ward N Zalta ed.), <https://plato.stanford.edu/archives/spr2018/entries/constitutionalism/>
accessed 22 February 2022.
4 Waluchow (n 3).
5 Hilaire Barnett, Constitutional and Administrative Law 5 (3rd edn, Cavendish Publishing
Limited 2000).
6 Louis Henkin, ‘A New Birth of Constitutionalism: Genetic Influences and Genetic Defects’ in
Michael Rosenfield (ed), Constitutionalism, Identity, Diference, and Legitimacy: Theoretical
Perspectives (Duke University Press 1994).
7 Barnett (n 5).
226 Ali Riaz
the state of constitutionalism in Bangladesh and its pathway based on four

criteria – popular sovereignty, separation of powers, independence of the judi-
ciary, and the rule of law. However, before employing these criteria we need to
briefly discuss the political and constitutional history of the country.
Constitutional developments in Bangladesh: an overview

Bangladesh’s Constitution promised a liberal democracy; consequently, institu-
tional arrangements were devised accordingly. These included the fundamen-
tal elements of a democratic republic – a multi-party system and supremacy of
the legislative branch. The Constitution also promised an independent judici-
ary. The country’s first departure from constitutional promises came as the
2nd Amendment in 1973. This provided the power to the executive to de-
clare an emergency, suspend some of the fundamental rights of the citizens during
an emergency, and order preventive detention without trial on state security
grounds. In January 1975, the country moved away from a parliamentary
system to a presidential system and turned into a one-party state through the
4th Amendment of the Constitution. Several other provisions, added to the
Constitution by the 4th Amendment, created an enormous powerful execu-
tive branch. The separation of the judiciary and the executive, a cornerstone of
democracy, was done away with as the amendment empowered the president
to appoint all judges and determine their tenure without any consultation
with the chief justice. The president was provided with the authority to re-
move a judge, including the chief justice, simply by an order on the grounds
of misbehavior or incapacity. The power and authority of the Supreme Court
were severely curtailed. The Supreme Court’s authority of appointments to,
and control and discipline of, subordinate courts was withdrawn and vested
in the president (articles 115 and 116 of the Constitution). The power of
the High Court Division of the Supreme Court in respect to the enforce-
ment of fundamental rights and to issue specific orders (writs) and directions
was circumscribed. The incumbent didn’t seek ratification from the citizens
of such fundamental changes to the Constitution. Instead, the government
made these changes arbitrarily, getting the 4th Amendment Bill past the par-
liament in less than thirty minutes. The 1973 election manifesto of the ruling
Bangladesh Awami League (BAL) of the time didn’t even hint at such drastic
measures.
Constitution was suspended after a military coup in August 1975, which
also saw the killings of then President Sheikh Mujibur and his family members
and associates. Instability, coups, and counter-coups followed until November
1975. The Constitution remained suspended while the country was ruled by
decrees issued under the executive authority of the martial law administrator
between 1975 and 1979. While there was a de facto restoration of various
parts of the Constitution during this period, for example, allowing multi-party
limited political activities, the Constitution as a whole was not restored un-
til 6 April 1979. The 5th Amendment of the Constitution incorporated and
ratified all the actions of the government since 15 August 1975 and brought
a significant change to the nature of governance. Although the one-party sys-
tem was abolished soon after the coup in 1975, the presidential form of the
government continued allowing the concentration of power in the hands of
the executive branch, especially the president. Subsequent measures of the first
military ruler of this period General Ziaur Rahman civilianised the military
regime, but democratic institutions were either absent or severely weak.
The assassination of Ziaur Rahman in May 1981 in an abortive coup was
followed by a brief interregnum. Vice President Abdus Sattar became the act-
ing president. However, his eligibility to run for the presidency in November
1981 election required a constitutional amendment. The parliament adopted
the 6th Amendment, precisely to cater to an individual. His short-lived gov-
ernment was ousted through a military coup on 24 March 1982. General
HM Ershad declared martial law and suspended the Constitution. While he
followed his predecessor Ziaur Rahman and held several elections (e.g., ref-
erendum, presidential election), the Constitution remained suspended until
parliament, elected through a controversial election, amended the Constitu-
tion on 10 November 1986. The 7th Amendment, like the 5th Amendment
under Ziaur Rahman, provided legitimacy to the executive decrees and indem-
nified the actions taken since the second military takeover. Two years later,
another amendment, the 8th Amendment, brought changes to the Constitu-
tion including the inclusion of Islam as the state religion. A part of the 8th
Amendment that decentralised the High Court Division was struck down by
the Supreme Court’s Appellate Division in 1989, but the state religion clause
remained.
In December 1990, in the wake of a popular uprising against the military
regime of HM Ershad, then Chief Justice Shahabuddin Ahmed was appointed
the vice president of the Ershad government. Upon Ershad’s immediate res-
ignation, Justice Ahmed assumed the presidency on 6 December 1990. This
appointment contravened the letter of the constitutional provision which pre-
vents Supreme Court judges from accepting any “Ofce of Profit”. His ap-
pointment was validated with retrospective efect by the 11th Amendment
later in the year 1991 after an election delivered victory to the Bangladesh
Nationalist Party (BNP). The 11th Amendment also allowed Justice Ahmed
to return to the post of chief justice. The country made amends to its turn
to executive supremacy in 1991 through the 12th Amendment, which rein-
troduced the parliamentary system. Bangladesh’s journey towards democracy
ensued.
During the following years, the supremacy of the Constitution was un-
dermined as parliament was boycotted by the opposition, irrespective of the
party, while the incumbent used its majority to railroad its agenda. The de-
mand for the inclusion of a caretaker government system to hold elections,
like the interim measure in 1991, gained support when the opposition BAL
mounted street agitation in 1994–1995. The intransigent attitude of the
incumbent BNP to bring about any changes in the Constitution to mitigate
228 Ali Riaz
electoral fraud, while the BAL insisted on a constitutional amendment, led

to a political stalemate. The resignation of 147 opposition members of the
parliament in December 1994 made it impossible to take any significant
measure to incorporate the demands of the opposition within the Constitu-
tion. The BNP government, led by Khaleda Zia, completed its term and
arranged a general election in February 1996. Boycotted by all opposition
and marred by widespread rigging, the newly elected parliament became
a one-party show. The parliament, which lasted only 12 days (19 March –
30 March), passed the 13th Amendment incorporating the provision that
national elections will be held under a non-partisan caretaker government
(CTG).
Following two relatively fair and inclusive general elections held under
the auspices of CTG, the BNP brought an amendment in 2004 to the
Constitution to ensure that the election-time government is headed by
a former chief justice who is sympathetic to the party. The stealthy way
of such machination, incorporated in the 14th Amendment, engendered
violent reactions from the opposition. Consequently, the election was can-
celled, and a military-backed caretaker government was installed, which
was not quite the same as the constitutional CTG. It assumed power in
2007. After two years of hiatus, an election was held, and BAL secured a
landslide victory.
Using the 2010 Supreme Court verdict on the legality of the caretaker
system as a pretext, the BAL scrapped the system through the 15th Amend-
ment in 2011. This only guardrail against the potential of widespread fraud in
elections was eliminated with the change in the Constitution. One of the key
elements of the 15th Amendment was the inclusion of article 7B. The newly
added article, called the eternity clause, has protected parts of the Constitution
from any future amendments. Some provisions of the Constitution are now
determined as the “basic structure” of the Constitution by article 7B, in addi-
tion to what was already considered basic structure pursuant to the Supreme
Court’s verdict on the legality of the 8th Amendment. As analysts have noted,
the paradox is that this amendment was “introduced by an exercise of simple
amending power, as opposed to an exercise of constituent power”8 and the
legality of article 7B is open to question.9
Following the 15th Amendment, opposition parties’ demand for the
restoration of the caretaker system was ignored. An election in 2014 was
held, participated in only by the incumbent and its allies. In efect, a one-
party parliament came into being and ruled the country. In 2014, the 16th
8 Lima Aktar, ‘Article 7B and the Paradox of Eternalising the Constitution of Bangladesh’, IACL-
AIDC Blog, 11 May 2021, <https://blog-iacl-aidc.org/2021-posts/article-7b-and-the-para-
dox-of-eternalising-the-constitution-of-bangladesh> accessed 23 February 2022.
9 Ridwanul Hoque, ‘Eternal Provisions in the Constitution of Bangladesh: A Constitution Once
and For All?’ in R Albert and BE Oder (eds), An Unconstitutional Constitution?: Unamend-
ability in Constitutional Democracies (Springer 2018).
Amendment passed by the parliament brought back the power to impeach

judges for “misconduct or incapacity” to the parliament, as it was in the
1972 Constitution. This shift of power from the existing system of the Su-
preme Judicial Council is composed of peers to the parliament provided
an impression that the authority is being brought to the legislative branch,
but it essentially subjected the judiciary to the political whims of partisan
members, especially considering that the members of the parliament have no
independence due to the anti-defection clause of the Constitution (article
70). The Appellate Division of the Supreme Court nullified the amendment
on 5 May 2016.10 The decision is currently under review in the Appellate
Division.
Four criteria of constitutionalism
Popular sovereignty
Popular sovereignty is the key to constitutionalism. Popular sovereignty means

that government is created by and subject to the will of the people. This no-
tion rejects despotic power or oligarchic rule. Sovereignty is inalienable and,
therefore, cannot be appropriated in the name of divine power, development,
national security, or a political ideology. Representation is a way of provid-
ing consent by the governed to those who govern. The US Constitution, for
example, afrms that life, liberty, and the pursuit of happiness are inalienable
rights and that “to secure these rights, Governments are instituted among
Men, deriving their just powers from the consent of the governed”.11 The
consent of the governed provides legitimacy to the government and the moral
right to govern. In the words of English poet John Milton:
The power of kings and magistrates is nothing else, but what is only
derivative, transferred and committed to them in trust from the people,
to the common good of them all, in whom the power yet remains fun-
damentally, and cannot be taken from them, without a violation of their
natural birthright.12
Popular sovereignty is reflected through elections of the executive and leg-

islative bodies. Bangladesh’s Constitution espouses popular sovereignty and
articulates it in article 7(1): “All powers in the Republic belong to the people,
and their exercise on behalf of the people shall be efected only under, and by
10 See Bangladesh v Asaduzzaman Siddiqui (2017) CLR (AD) (Spl) 1.

11 See the Thomas Jeferson, Declaration of Independence of the United States of America
(1776).
12 Quoted in Danièle Frison, ‘Rights and Liberties in John Milton’s The Tenure of Kings and
Magistrates’ in Christophe Tournu and Neil Forsyth (eds), Milton, Rights and Liberties (Peter
Lang 2005) 171.
230 Ali Riaz
the authority of, this Constitution”. Popular sovereignty is further entrenched

in article 11 which states:
The Republic shall be a democracy in which fundamental human rights

and freedoms and respect for the dignity and worth of the human person
shall be guaranteed, and in which efective participation by the people
through their elected representatives in administration at all levels shall
be ensured.
However, besides being ruled by military regimes for almost fifteen years be-
tween 1975 and 1990, the 4th Amendment of the Constitution breached
popular sovereignty and, without the consent of the citizens, circumscribed
the popular participation. As for the eleven parliamentary elections held until
2018, only four have been considered reflective of the popular will and rela-
tively fair. These are: 1991, 1996 (June), 2001, and 2008. The 1973 election,
the first one since the introduction of the Constitution, remained controver-
sial, although the overall result may have been consistent with popular ex-
pectations. Highly manipulated elections delivering victory to the incumbent
became the norm between 1979 and 1990.
After the country’s democratic transition in 1990, the situation of elections
improved but the 1996 February election was a one-party show. This election
was viewed as an exception as subsequent elections were participated by all par-
ties. But the 2014 election became a replication of the 1996 February election.
The CTG provision, enacted through the 13th Amendment, ensured a way for
the peaceful transfer of power but that collapsed after the debacle of 2006. One
can argue against the CTG provision,13 but constitutionalism is not only the
letter of the constitution but also the spirit of it. The political culture, especially
the trust deficit among the political parties, and ensuring the fairness of the
electoral system requires a governance system that will ofer opportunities for
the participation of the people. Unfortunately, the 2014 and 2018 elections
have clearly demonstrated that such an arrangement is still required. The elec-
tions in 2014 and 2018 have also demonstrated that the Constitution has failed
to install a system of a free and fair election and a peaceful transition of power.
Election, however, is not the only way to explore and ensure popular sov-
ereignty. Another indicator can be the extent of the opportunities for the citi-
zens to participate in the political processes. Data on voice and accountability
of the World Governance Indicators (WGI) shows the precipitous erosion of
the voices of the citizens, a key element of popular sovereignty (Figure 14.1).
It is in this regard that we need to explore the notion of accountability
further. Accountability, a concept that has evolved and continues to evolve,
13 M Jashim Ali Chowdhury, ‘Elections in “Democratic” Bangladesh’ in Mark Tushnet and

Madhav Khosla (eds), Unstable Constitutionalism: Law and Politics in South Asia (Cambridge
0.00
-0.10
-0.20
-0.30
-0.40
-0.50
-0.60
-0.70
-0.80
-0.90
Figure 14.1 Voice and Accountability Score of Bangladesh, 1996–2020

Source: World Bank, World Governance Indicators (WGI) (https://databank.worldbank.org/
source/worldwide-governance-indicators)
is the basis of checks and balances on the branches of the government, on

the one hand, while ensuring the role of citizens in the daily functioning of
government, on the other. Accountability should not be considered as a verti-
cal mechanism only; for a viable and functioning democracy, accountability
means vertical, horizontal, and societal. Vertical accountability is the election
system, while horizontal accountability of the government comes from a net-
work of relatively autonomous powers, which are often the constitutionally
mandated organisations, such as the anti-corruption and the human rights
bodies and the electoral commission. Societal accountability is to the citizens’
associations. These have remained elusive in the past fifty years, as the lack of
autonomy of these constitutional bodies testifies.
Separation of powers
The concept of separation of powers, underscored in the 18th century by

French political philosopher Montesquieu, has clearly laid out that the politi-
cal authority of the state is required to be divided into legislative, executive,
and judicial powers. Montesquieu’s assertion that to promote liberty, these
three powers must be separate and act independently remains equally impor-
tant today. In fact, on the one hand, other political theorists have built on this
notion, while, on the other hand, it has become one of the defining features of
a democratic republic. The division of power into three branches is intended
to limit any one branch from exercising the core functions of another, prevent
the concentration of power in any branch, and provide for checks and balances
on the powers of all branches.
232 Ali Riaz
The Bangladesh Constitution incorporated this fundamental aspect of a

democratic republic. Articles 22, 26, 55, 65, 94(4), 102, 107, 109 and 116A
of the Constitution reflect the state’s adoption of the doctrine of separation
of powers.14 However, in Bangladesh, such separation remains elusive. I will
discuss the judicial independence issue as a separate element later. Bangla-
desh’s past fifty years’ experience shows that executive aggrandisement has
taken place through constitutional and extraconstitutional measures. The 4th
Amendment, which introduced the presidential system, also provided un-
bridled power to the presidency, including control over the judiciary. The
subservience of the legislature continued during military rule. Although the
reintroduction of the parliamentary system in 1991, through the 12th Amend-
ment, created the opportunity to separate the legislative and executive powers
and create a balance between these two, not to mention establish checks and
balances, it rather amalgamated these two powers. The amendment shifted the
presidential powers, in lock, stock, and barrel, to the prime minister (PM), in
addition to the powers the PM obtains by virtue of the parliamentary system.
Subsequently, enormous power has concentrated in the hands of the PM and
an all-powerful “prime ministerial system” emerged.
The PM remained beyond any scrutiny and accountability because she holds
several ofces. In addition to being the PM, she is also the leader of the House,
the leader of the parliamentary party of the majority party, and the chief of
the party. Article 70 of the Constitution, as amended in 2011, stipulates that
a member of parliament will lose their membership if they vote against the
party that nominated them as a candidate. This provision has provided com-
plete control of the parliamentary party to the respective leader(s). Any kind
of dissent will result in the dissenter losing the membership of the parliament
and membership of the party. Such a harsh penalty will bring an end to the
political career of any member of the parliament. Thus, there has not been
any dissension. In the case of the PM, it allows her to exercise unrestrained
power. The concentration of power in one ofce created the opportunity for
the emergence of a constitutionally allowed authoritarian leader. Individual
behaviour notwithstanding, it betrayed one of the fundamental elements of
constitutionalism, the separation of powers.
The concentration of power in one ofce has reached the zenith since 2011.
There seems to be complete reliance on the PM for any kind of solution. The
repeated insistence by the party leaders15 and pro-government journalists16
14 On separation of powers in Bangladesh, see esp. Chapter 8 in this volume.

15 Prothom Alo, ‘No alternative to Hasina: Kamal’, 17 April 2016 <https://en.prothomalo.
com/bangladesh/No-alternative-to-Hasina-Kamal> accessed 11 February 2022 and The
New Nation, ‘AL Has No Alternative to Hasina, Says Quader,’ 17 February 2019 <http://m.
thedailynewnation.com/news/206607/al-has-no-alternative-to-hasina-says-quader> accessed
11 February 2022.
16 Peer Habibur Rahman, ‘No Alternative to Hasina in Running the Country’, The Daily Sun
(Dhaka, 21 November 2019) <www.daily-sun.com/printversion/details/440389/No-alter-
native-to-Hasina-in-running-the-country> accessed 13 February 2022.
that there is no alternative to the current prime minister Sheikh Hasina not
only shows the personalistic nature of her leadership but also shows how the
separation of power is not even considered a necessity of governance. The de-
mands for her intervention in solving any problems, from the capital market17
to protecting “innocent” children,18 to school-level examinations,19 only reaf-
firm that there is no other power center in the country while the constitutional
text suggests otherwise.
Independence of judiciary
Judicial independence, variously conceptualised by political philosophers and

jurists, has one common element in the context of constitutionalism; the con-
stitution must unequivocally assert that the judiciary cannot be subservient to
any of the two other branches. Bangladesh’s Constitution has various articles
where the commitment to judicial independence is made. For example, article
22 provides that “the State shall ensure the separation of the judiciary from
the executive organs of the State” while article 94(4) states that “the Chief
Justice and the other judges of the Supreme Court of Bangladesh shall be
independent in the exercise of their judicial functions”. The same view is also
reflected in article 116A regarding the judges and magistrates of the subordi-
nate courts. Despite these commitments and articulations in the Constitution
and despite the separation of magistrates exercising judicial functions from the
executive branch since November 2007, the separation of judiciary and execu-
tive in the sense of full judicial autonomy has remained unfulfilled to date.
The 4th Amendment, as mentioned earlier, dealt a serious blow to the
concept of judicial independence as it brought the judiciary under the presi-
dent’s purview and established firm control of the executive on the appoint-
ment and dismissal of judges of all tiers. Despite the change in the political
situation and annulment of many parts of the 4th Amendment after 1975,
the executive’s influence appears writ large on the judiciary. Several attempts
have been made between 1976 and 1999 when the Supreme Court issued
twelve-point instructions to the government to take steps to ensure the
separation. For example, in 1976 a law reform committee recommended20
17 Sujan Mia, ‘PM’s Intervention Sought to Save Capital Market’, The Asian Age (16 January
2020) <https://dailyasianage.com/news/214361/pms-intervention-sought-to-save-capital-
market> accessed 12 February 2022.
18 Bangladesh Post, ‘PM’s Intervention Sought to Protect Innocent Children’ (Dhaka, 17 Octo-
ber 2020) <https://bangladeshpost.net/posts/pm-s-intervention-sought-to-protect-innocent-
children-5087> accessed 12 February 2022.
19 The Daily Sun, ‘PM’s Intervention Sought to Cancel O, A-Level Exams’ (24 September
2020) <www.daily-sun.com/printversion/details/507479/PM%E2%80%99s-intervention-
sought-to-cancelO-Alevel-exams> accessed 11 February 2022.
20 M M Hossain, ‘Separation of Judiciary in Bangladesh-Constitutional Mandates and Masdar
Hossain Case’s Directions: A Post Separation Evaluation’ (2020) 11(2) International J for
Court Administration, DOI: http://doi.org/10.36745/ijca.310.
234 Ali Riaz
the separation of the executive and judiciary. A private members’ Bill was
introduced in 1987 to this efect, but it didn’t see the light of the day after
being sent to the relevant parliamentary committee. However, a court case
filed in 1995 by Masdar Hossain, a district judge along with another 441
judicial ofcers, resulted in the issue of the twelve-point directions by the Su-
preme Court when the process reached its conclusion.21 Despite such a clear
and unequivocal verdict of the Supreme Court reafrming the constitutional
commitment and the way forward, subsequent governments – irrespective
of the political parties – took no initiative in this regard. In 2007, however,
the caretaker government made necessary laws and paved the way for the
separation of the executive from the judiciary. However, this step is yet to
result in an independent judiciary. As reported in the press in late 2021: “in-
dependent judiciary is still a far cry”.22 One chief justice and one Appellate
Division judge, ten years apart, ABM Khairul Haque in 201123 and Mirza
Hossain Haider in 2021,24 immediately before their retirements said that the
independent judiciary has remained a dream.
Although the Constitution has stated the commitment to the separation of
the judiciary and the executive, it has provisions that are contrary to this com-
mitment. Two articles – 115 and 116 – contravene the principle of separation
and contradict article 109. Article 109 stipulates that the High Court Division
“shall have superintendence and control over all courts and tribunals subordi-
nate to it”. Articles 11525 and 116 provide power to the president regarding
the appointments of persons in the judicial service and their “control” and
“discipline”. Article 116, in particular, states that:
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 shall vest in the Presi-
dent and shall be exercised by him in consultation with the Supreme
Court.
These provisions have maintained the executive’s control over the judiciary.
Interestingly, the 1972 Constitution did not have article 116 in its current
21 id. See also Secretary, Ministry of Finance v Md Masdar Hossain (2000) 52 DLR (AD) 82.
22 M Moneruzzaman, ‘Independent Judiciary Still a Far Cry’, The New Age (Dhaka, 31 October
2021) <www.newagebd.net/article/153331/independent-judiciary-still-a-far-cry> accessed
12 December 2021.
23 Bangla News 24, ‘The Independence of Judiciary Is Illusive: Outgoing Chief Justice’ (Dhaka
17 May 2011) <www.banglanews24.com/national/news/bd/40717.details> accessed 4 Jan-
uary 2022.
24 Manab Zamin, ‘We All Know How Much Independent the Judiciary Is in Reality’ (28 Febru-
ary 2021) <https://mzamin.com/article.php?mzamin=264472> accessed 4 January 2021.
25 Article 115 states: “Appointments of persons to ofces in the judicial service or as magistrates
exercising judicial functions shall be made by the President in accordance with rules made by
him in that behalf.”
state. The original provision of article 116 provided the authority of judges’
posting, promotion, and leave to the Supreme Court. And, under the 1972
Constitution (article 115), the president was required to appoint district
judges only on the Supreme Court’s recommendation. The current provisions
of these two articles were inserted by two amendments – the 4th Amendment
of 1975 and the 15th Amendment in 2011. Then Chief Justice SK Sinha, in
2016, urged the government to abolish article 116 to make the judiciary truly
independent of the government.26
The fate of Chief Justice Sinha is worth recalling. After the Supreme
Court nullified the 16th Amendment, he was allegedly forced to resign from
his post, and exiled in 2017.27 This episode also revealed how the appoint-
ment and removal of the Supreme Court judges have remained a means to
curtail the independence of the judiciary. Although article 95(2)(c) of the
Constitution requires the appointment of judges to be based on “qualifica-
tions as may be prescribed by law”, no such law has been legislated to date.
The reference to “law” in article 95(2) was inserted in 1978. The Court has
repeatedly drawn this requirement to the attention of the government but
in vain.
Rule of law
Rule of law as an integral factor of constitutionalism requires no elucidation.

There is a long tradition of the discussion of rule of law in political philosophy
and, subsequently, in the legal tradition. For example, there are discussions
of some form of rule of law in the works of Aristotle (c.350 bc). Political
theorists such as Locke (1632–1704) and Montesquieu (1689–1755) have
vigorously deliberated on the topic. Montesquieu’s works (including, notably,
his The Spirit of Laws (1748)) have underscored the necessity of the separa-
tion of powers, which has strongly shaped the subsequent discussions. As for
policy implications, particularly in determining the relationships between the
citizens/subjects and the rulers, the most important document has been the
Magna Carta (1215). It curbed the arbitrary power of the British king and
also laid out four fundamental principles – that no one is above the law, not
26 New Age, ‘Abolish Articles 116, 116A of Constitution to Establish Rule of Law: CJ’
(Dhaka, 10 December 2016) <www.newagebd.net/article/4552/abolish-articles-116-116a-of-
constitution-to-establish-rule-of-law-cj> accessed 5 January 2022.
27 See, Ali Riaz, ‘16th Amendment Struck Down: More Than a Verdict’, The Daily Star (Dhaka,
2 August 2017) <www.thedailystar.net/op-ed/politics/more-just-verdict-1444567> accessed
21 December 2021; Ali Riaz, ‘Sinha Saga: More Questions Than Answers’, The Daily Star
(Dhaka, 19 October 2017) <www.thedailystar.net/opinion/perspective/sinha-saga-more-
questions-answers-1478407> accessed 21 December 2021; David Bergman, ‘Bangladesh:
Ex-Chief Justice Alleges He Was “Forced” to Resign’, Al Jazeera English (28 September
2018) <www.aljazeera.com/news/2018/09/bangladesh-chief-justice-alleges-forced-resign-
180927103453932.html> accessed 21 December 2021.
236 Ali Riaz
even the monarch; that no one can be detained without cause or evidence;
that everyone has a right to trial by jury; and that a widow cannot be forced
to marry and give up her property. In the context of constitutionalism, these
discussions and the Magna Carta principles have been instrumental in various
ways. They had influenced the framers of the US Constitution as reflected in
The Federalist Papers (October 1787 – May 1788). Contemporary discussions
and working definitions of the rule of law have emerged out of the work of
constitutionalist A V Dicey (1885).28
There are three aspects to Dicey’s conceptualisation of the rule of law: ab-
sence of arbitrary power (the supremacy of law); equality before the law; and
constitution as the result of the ordinary law of the land. Based on these three
principles, institutions around the world have elaborated the meaning and the
modus operandi of the rule of law. According to the American Bar Association:
the rule of law is a set of principles, or ideals, for ensuring an orderly and
just society. Many countries throughout the world strive to uphold the
rule of law where no one is above the law, everyone is treated equally un-
der the law, everyone is held accountable to the same laws, there are clear
and fair processes for enforcing laws, there is an independent judiciary,
and human rights are guaranteed for all.29 In a similar vein, the United
Nations (UN) defines the concept as follows:
the rule of law is a principle of governance in which all persons, institu-

tions and entities, public and private, including the State itself, are ac-
countable to laws that are publicly promulgated, equally enforced and
independently adjudicated, and which are consistent with international
human rights norms and standards. It requires measures to ensure ad-
herence to the principles of supremacy of the law, equality before the
law, accountability to the law, fairness in the application of the law, sepa-
ration of powers, participation in decision-making, legal certainty, avoid-
ance of arbitrariness, and procedural and legal transparency.30
In the Constitution of Bangladesh, the state promises to uphold the rule of

law as a fundamental aim. The preamble of the Constitution states:
It shall be a fundamental aim of the state to realize through the dem-

ocratic process a socialist society, free from exploitation – a society in
28 Albert Venn Dicey, Introduction to the Study of the Law of the Constitution (Liberty Fund
1982).
29 American Bar Association, ‘What Is the Rule of Law?’ (n.d.) <www.americanbar.org/groups/
public_education/resources/rule-of-law/> (accessed 15 March 2022).
30 United Nations, ‘What Is the Rule of Law?’ <www.un.org/ruleoflaw/what-is-the-rule-of-law/>.
which the rule of law, fundamental human rights and freedom, equality
and justice, political economic and social, will be secured for all citizens.
Consequently, several provisions ensuring the guarantee of the rule of law

have been included in the Constitution. These provisions are: article 27
(guaranteeing that all citizens are equal before the law and are entitled to
equal protection of the law); article 31 (declaring citizens’ right to enjoy
the protection of the law, and to be treated in accordance with law as an
inalienable right); article 32 (guaranteeing the right to life and liberty);
article 44 (the citizens’ right to seek remedies for the enforcement of the
fundamental rights); and article 102 (the Court’s jurisdiction to ensure the
enforcement of fundamental rights). Importantly, the Constitution pro-
claims that any law that is inconsistent with the fundamental rights or with
the Constitution generally will be void (articles 26 and 7) and that “the
State shall not make any law inconsistent with” the fundamental rights
provisions (article 26(2)).
These provisions provide the impression that the Bangladeshi state ofers
strong protection to its citizens. But Bangladesh’s scores in the rule of law
category on a scale between −2.5 (weak) to +2.5 (strong) have remained nega-
tive between 1996 and 2020, according to the World Governance Indicators
(WGI) (Figure 14.2) because of frequent violations and systemic weaknesses.
According to the World Justice Project, in 2021, Bangladesh ranked 124th
among 139 countries.31 Incidents of extrajudicial killings, euphemistically de-
scribed as “crossfire/encounter/gunfight” by the law enforcement agencies,
reportedly 4,044 between 2001 and 2021,32 and enforced disappearances, al-
legedly perpetrated by state actors, reportedly 593, between 2009 and 202133
show that the state is neither protecting the lives of the citizens nor providing
the right to have a trial in a court. Worst yet, the government continues to
deny the existence of such phenomena.
Furthermore, in the past decades, various governments have resorted to
legislating laws to indemnify the law enforcement agencies’ violations of fun-
damental rights and involvement in extrajudicial killings. For example, on 9
January 2003, the BNP-led parliament passed an indemnity law that provided
legal protection to the members of the law enforcement agencies who were
engaged in an “anti-crime” drive between 16 October 2002 and 9 January
31 World Justice Project (WJP), ‘WJP Rule of Law Index: Bangladesh’ <https://worldjustice-
project.org/sites/default/files/documents/Bangladesh_2021%20WJP%20Rule%20of%20
Law%20Index%20Country%20Press%20Release.pdf> accessed 16 March 2022.
32 Ali Riaz, ‘Executions at Will? Extrajudicial Killings by State Actors in Bangladesh’ (Centre for
Governance Studies 2022) <https://cgs-bd.com/cms/media/documents/e2b879c0-4fb2-
42c1-a80f-66002deadafa.pdf> accessed 29 March 2022.
33 Ali Riaz, ‘Where Are They? Enforced Disappearances in Bangladesh’ (Centre for Governance
Studies 2022) <https://cgs-bd.com/cms/media/documents/c65456b5-e648-4f9-b12a-
9a58779f4eca.pdf> accessed 29 March 2022.
238 Ali Riaz
-0.57
-0.64
-0.64
-0.66
-0.67
-0.73
-0.75
-0.75
-0.78
-0.79
-0.80
-0.83
-0.87
-0.89
-0.90
-0.90
-0.91
-0.93
-0.93
-0.98
-1.02
-1.05
Figure 14.2 Rule of Law Scores of Bangladesh, 1996–2020

Source: World Bank, World Governance Indicators (WGI) (https://databank.worldbank.org/
source/worldwide-governance-indicators)
2003. During the drive, at least forty-four people died in custody.34 Besides,
laws have been created to provide unlimited power to the law enforcement
agencies to arrest people without a warrant, even on a suspicion that a crime
may be committed in future. Preventive detention of individuals as well as the
seizure and search of premises allowed under the Special Powers Act 1974 is
a case in point.35 Similarly, the Digital Security Act 2018 (DSA) gives law en-
forcement agencies the power to arrest anyone, search any premises, and seize
any equipment without a warrant, requiring only the existence of suspicion
that a crime has been committed using social media.
Legislating laws that deprive the citizens of their inalienable rights and pro-
tection from the excesses of the state actors is the classic case of “rule by law”
instead of “rule of law”. Rule by law, as Waldron has explained:
connotes the instrumental use of law as a tool of political power. It means

that the state uses the law to control its citizens but tries never to allow
34 The Daily Star, ‘Operation Clean Heart indemnity law illegal: HC’ (Dhaka, 13 September
2015) <www.thedailystar.net/country/operation-clean-heart-indemnity-law-illegal-hc-142468>
accessed 15 March 2022.
35 Government of Bangladesh, Legislative and Parliamentary Afairs Division, ‘Laws of Bangla-
desh: Special Powers Act 1974’ <http://bdlaws.minlaw.gov.bd/act-462.html>; for the abuse
of this power, see, Immigration and Refugee Board of Canada, ‘Responses to Information
Request’, BGD104943.E (9 September 2014) <www.justice.gov/sites/default/files/eoir/
legacy/2015/01/08/BGD104943.E.pdf> accessed 27 March 2022.
the law to be used to control the state. Rule by law is associated with the
debasement of legality by authoritarian regimes.36
In the case of Bangladesh, both military and civilian regimes have resorted to
this means, which is far away from the practice of constitutionalism.37
Conclusions
Discussions on constitution and constitutionalism in Bangladesh often argue
that there have been certain times in its history when the country veered
away from constitutionalism. Such interpretations insist that constitutional-
ism was interrupted, either by military regimes or as an aberration of civil-
ian regimes, and subsequently, it has returned to the path.38 This chapter
challenged this conventional wisdom and demonstrated that constitution-
alism has remained elusive in the country since its inception. The history
of constitutional developments in Bangladesh shows that there have been
instances of suspension of the Constitution by the military regimes, while
in other instances constitutional amendments have been made in contraven-
tion of fundamental elements of constitutionalism. The Constitution limits
the expansive power of the state, ensures the participation of the people,
and guarantees the inalienable rights of the citizens. Individualisation or
politicisation of constitutional amendments, that is, making amendments to
cater to any particular individual or party, is a blot on the Constitution and
constitutionalism in Bangladesh.
Representation of people was circumscribed as the electoral process has
been manipulated on various occasions, and accountability mechanisms have
been either not created or weakened. Although the Constitution expressed
its commitment to popular sovereignty, it has been denied through various
means. The absence of a fair electoral system acceptable to all is a testimony
to that denial. Power had been concentrated in the hands of the president for
more than a decade and a half, but the reintroduction of the parliamentary
system didn’t make the situation better. Instead, the prime ministerial system
has been used to create the opportunity for the emergence and practice of
authoritarianism by way of abusing the Constitution. The checks and balances
36 Jeremy Waldron, ‘The Rule of Law’, The Stanford Encyclopedia of Philosophy (Summer 2020
edn, Edward N. Zalta ed.) <https://plato.stanford.edu/archives/sum2020/entries/rule-of-
law/> accessed 27 March 2022.
37 On the rule of law in Bangladesh, see Chapter 5 in this volume, and Ridwanul Hoque, ‘Rule
of Law in Bangladesh: The Good, the Bad, and the Ugly?’ in Chowdhury Ishrak A. Siddiky
(ed), The Rule of Law in Developing Countries: The Case of Bangladesh (Routledge 2018) 18.
38 See, for example, Gowher Rizvi, ‘Democracy & Constitutionalism in South Asia: The
Bangladesh Experience’ (Harvard University Ash Center 2005), <https://ash.harvard.edu/
publications/democracy-constitutionalism-south-asia-bangladesh-experience> accessed 27
March 2022.
240 Ali Riaz
on the executive have been done away with through the manipulation of con-
stitutional provisions, creating pliant legislature and practice in politics. The
absence of judicial independence and the prevalence of the rule by law, instead
of the rule of law, have left the citizens dispossessed. The use of arbitrary
power has become the norm, rather than an aberration, thus betraying the
foundational element of constitutionalism.
Index
Note: Page numbers in italic indicate a figure on the corresponding page.
abdication see role abdication autochthonous 21, 29–30, 35, 38

abolition of caretaker government Awami League (AL) 4–5, 8–11, 39–41,
174–176 59, 147, 226; justice as fairness
accountability of executive power 211–212, 221; political parties
129–130, 143–144; American 165–168; Supreme Court
and British models 132–134; 103–104, 108; women 204–205
cosmetic design of separation of
powers 135–136; demarcation of Bangabandhu 1n2, 4–10, 40–42, 59–65,
powers 134–135; fundamental 142–149, 152
rights as a limit to the executive Bangladesh Krishak Sramik Awami
power 141–143; judiciary and League (BAKSAL) 168–169
check on executive and legislative Bangladesh Nationalist Party (BNP)
powers 140–141; omnipotent 9–11, 61, 147–152, 157–158,
prime minister 136–140; 169–175, 205, 227–228
separation of powers as a method Bangladesh’s legal system (BLS) 29–30;
for limiting the state 131–132 emergence of 38–43; flaws of the
achievements, constitutional 12–19 Kelsenian model 34–35; Hart’s
Ahmad, Tajuddin 59, 130, 184–187, 214 rule of recognition 35–38; Kelsen
Al Jazeera 107–111 on revolutionary legality 30–34
all-powerful executive 138–140 Bano, Begum Razia 7n29, 196n21, 197
amendability of FPSPs 191–192 basic structure doctrine (BSD) 13, 16–19,
amending see constitution-amending 21, 102, 191–192
Amendments 103–107 bipartisanship 157–158
American constitutionalism 132–134 BLS see Bangladesh’s legal system (BLS)
anti-coexistence justifications 70–72 British constitutionalism 132–134
Anwar Hossain Chowdhury v Bangladesh broadcasting 107–111
16, 29–30, 113, 119–120, 186
Appellate Division (AD) 13–14, 19, caretaker government system see non-
29–32; divergence of Constitution party caretaker government
and politics 227–229, 234; challenges, constitutional 19–20
economic and social human change in the grundnorm 33–34
rights 183–184; international law Chittagong Hill Tracts 14, 71, 87
46, 51–54; judicial review 79–81, civil and political (CP) 9, 181, 210–213
96, 103–105, 110, 113–114, civil and poll rights (CP rights/CPR)
120–124; political parties 176; 173
women 201 coexistence 58–62, 72–73; anti-
aspirational value 81–84 coexistence 70–72; debates over
242 Index
the meaning of secularism 62–64; progressive taxation 218–220;

justifications and critiques 64–70; rule of law 235–239, 238;
new discourse 72 separation of powers 231–233;
community see majority religious socialism as defined in the
community Constitution 211–213; status
compromise see political compromise of economic and social rights
constituent assembly 6–7 213–214; status of international
constitutional developments 226–229 law in 47–51; and women
constitutional future 24–25 193–208
constitutionalism 224–229, 239–240; Convention on the Elimination of All
independence of judiciary Forms of Discrimination against
233–235; popular sovereignty Women (CEDAW) 56
229–231, 231; rule of law cosmetic design 134–136
235–239, 238; separation of cultural rights 186–191
powers 231–233 customary international law (CIL) 48–51,
constitutional journey 1–3, 7–12; 54; see also international law
achievements and innovations
12–19; failures and challenges demarcation of powers 134–135
19–21; war of independence 3–6 democracy 12–13; democratic
constitutional protection 181–182; basic development 169–174; and
structure of the Constitution women 206–207; see also
191–192 undemocratic party system
constitution-amending 161–163, democratic socialism 220–222
176–177; democratic de-secularisation argument 71–72
development 169–174; “deviations” see “Five Eastminster
parliamentary system 166–169; Deviations”
parties 163–166, 169–174 dictatorship 9, 22, 137, 213; “selective”
Constitution Drafting Committee (CDC) 150–154
7, 63, 114, 138–139, 165–166, discourse of secularism 72
176, 182, 1188, 197, 219–221 discrimination: in the private realm
constitution-making 161–163, 176–177, 201–202; sex-based 198–200
181–182; democratic domestic implementation of international
development 169–174; law 51–53
judicial enforcement 186–191; Dr Mohiuddin Farooque v Bangladesh
parliamentary system 166–169; 13, 122
parties 163–166, 169–174
Constitution of Bangladesh 44–45, economic human rights 181–182;
209–211, 222–223, 224–229, constitutional nature and
239–240; debates over the functions of FPSPs 182–186;
making of 45–47; democratic judicial enforcement 186–191;
socialism and Rawlsian status of 213–214
fairness 220–222; fair equality economic, social, and cultural (ESC)
of opportunity under the rights 181, 186, 192
constitutional framework Election Commission (EC) 79–81, 117,
215–217; and FPSPs 191–192; 155, 164, 169–170, 173
independence of judiciary Enforcement: human rights 123–124;
233–235; judicial invocation of judicial 186–191
international law 53–57; making equality 195–196, 206–207; fair equality
of 3–7; modalities of domestic of opportunity 215–217
implementation of international equal liberty 217–218
law 51–53; ownership, right equal respect argument 68–69
to property, and equal liberty Ershad, General Hossain M. 9, 61,
217–218; and parties 163–165; 66–67, 103, 116–117, 147–148,
popular sovereignty 229–231, 231; 152, 163, 169–170, 174, 227
Index 243
executive power 129–130, 143–144; human rights 181–182; basic structure

American and British models of the Constitution 191–192;
132–134; cosmetic design of constitutional nature and
separation of powers 135–136; functions of FPSPs 182–186;
demarcation of powers 134–135; enforcement 123–124, 186–191
fundamental rights as a limit to
141–143; judiciary and check illiberal bipartisanship 157–158
on 140–141; omnipotent prime ILO Convention 92
minister 136–140; separation of implementation see domestic
powers as a method for limiting implementation of
the state 131–132 international law
inclusive secularism 64–65
failures, constitutional 19–21 independence of judiciary see judicial
fair equality of opportunity 215–217 independence
fairness 209–211, 222–223; democratic innovations, constitutional 12–19
socialism and Rawlsian intention of framers 181–182; basic
fairness 220–222; fair equality structure of the Constitution
of opportunity under the 191–192; constitutional nature
constitutional framework and functions of FPSPs 182–186;
215–217; ownership, right judicial enforcement 186–191
to property, and equal liberty International Covenant on Civil and
217–218; progressive taxation Political Rights (ICCPR)
218–220; socialism as defined in international law 44–45; customary
the Constitution 211–213 international law (CIL) 48–51,
“Five Eastminster Deviations” 146, 54; and debates over the
150–152 making of the Constitution
Fuller, Lon 91 45–47; judicial invocation of
Fundamental Principles of State Policy 53–57; modalities of domestic
(FPSPs) 182–186; amendability implementation of 51–53; status
191–192; status of 186–191 in the Constitution 47–51
fundamental rights 141–143 Islam 58–62, 72–73; anti-coexistence
future, constitutional 24–25 70–72; debates over the meaning
of secularism 62–64; justifications
grundnorm 30–33, 35, 37, 43; change and critiques 64–70; new
in 33–34 discourse of secularism and state
religion debate 72
Hart, HLA 21, 30, 34–38, 40, 43, 77, 91
Hasina, Sheikh 63, 65–69, 72, 149, 152, Jamaat-e-Islami Bangladesh 15, 62, 149,
175, 233 170
High Court Division (HCD) 13–15; Jatiya Party (JP) 9, 11–12, 147–152,
constitutionalism 226–227, 234; 158, 169–172
economic and social human rights judicial enforcement 186–191
183–184, 190; executive power judicial independence 233–235; and rule
143; international law 52–54; of law 94–99
justice as fairness 214; judicial judicial interpretations 181–182; basic
policy-making (and the HCD) structure of the Constitution
104, 107–110; judicial review 191–192; constitutional nature
113, 116, 120–124; rule of law and functions of FPSPs 182–186;
79–81, 87; women 198–201 judicial enforcement 186–191
history/historical justification: anti- judicial invocation 53–56
coexistence 70–71; Constitution judicial perspective 77–81; judicial
226–229; parliament 146–150 independence 94–99; morality
Hossain, Dr Kamal 7, 90, 114, 139, 141, 81–84; moral reading of the law
165–166, 182, 188–189, 219 85–94
244 Index
judicial policy-making 100–102; Al judiciary and check on executive

Jazeera Documentary Broadcast and legislative powers 140–141;
Case 107–1111; political omnipotent prime minister
policy-making 102–103; 13th 136–140; separation of power as
amendment judgment 103–107 a method for limiting the state
judicial review 112–114, 125–126; 131–132
and the enforcement of human localisation of MPs 154–157
rights 123–124; judicial review
of constitutional amendments majority religious community 67–68
(JRCA) 119–121; principle Martial Law Proclamation 121, 126
of legality 124–125; of public martial law regulation 24, 120, 126
functions of private entities 123; ministerial responsibility 152–154
public interest litigation (PIL) modalities: domestic implementation of
121–123; separation of powers international law 51–53
and the judiciary 114–119 modus vivendi (MV) 67
Judicial Review of Constitutional morality 81–84; moral reading of the law
Amendments (JRCA) 119–121 85–94
justice 209–211, 222–223; democratic MPs 154–157
socialism and Rawlsian multi-party politics 161–166, 169–174,
fairness 220–222; fair equality 176–177; abolition of caretaker
of opportunity under the government 174–176;
constitutional framework democratic development
215–217; ownership, right 169–174; parliamentary
to property, and equal liberty system 166–169
217–218; progressive taxation
218–220; socialism as defined in nationalism 71
the Constitution 211–213 non-party caretaker government
(NPCTG)/CTG 10–13, 18–20,
Kazi Mukhlesur Rahman v Bangladesh 46 23, 103, 117; abolition of
Kelsen, Hans 37, 43; flaws of the model 174–176; Parliament of
34–35; on revolutionary legality Bangladesh 148–149; and
30–34 political parties 164, 173–174
Khandaker Mustaque Ahmad 63 non-separatist secularism 64–65
Larma, Manabendra Narayan 182, omnipotence 19, 129, 136–138, 140,

197–198 144, 175
Laws Continuance Enforcement Order one-party politics 161–166, 169–174,
1971 47 176–177; abolition of caretaker
Legal Framework Order (LFO) 5, 59 government 174–176;
legality 124–125; see also revolutionary democratic development
legality 169–174; parliamentary system
legal system see Bangladesh’s legal system 166–169
(BLS) opportunity see fair equality of
legislative powers 140–141 opportunity
legislature: and women 202–207 opposition, suppression of 157–158
liberty see equal liberty ownership 217–218
limits of executive power 129–130,
143–144; American and British parliamentary system 166–169
models 132–134; cosmetic design Parliament of Bangladesh 145–146,
of separation of powers 135–136; 158–160; brief history 146–150;
demarcation of powers 134–135; “Five Eastminster Deviations”
fundamental rights as a limit to 150–152; “selective dictatorship”
the executive power 141–143; 152–154; suppression of
Index 245
parliamentary opposition 157–158; reading of the law see moral reading of

undemocratic party system the law
154–157 recognition see symbolic recognition
Parliament’s Rules of Procedure (RoP) 7, religious pluralism 69–70
110, 139, 159 representation of women 206–207
party system 154–157; see also political Representation of People Order (RPO)
parties 1972 163–165
pluralism see religious pluralism reservation 203–206
policy see judicial policy-making; political responsibility see ministerial responsibility
policy-making revolutionary legality 30–34, 43
‘political,’ the: women in 202–207 rights see fundamental rights; human
political compromise 66–67 rights; right to property
political parties 161–166, 169–174, right to property 217–218
176–177; abolition of caretaker role abdication 154–157
government 174–176; rule of law 77–78, 235–239, 238;
democratic development judicial independence 94–99;
169–174; parliamentary system judicial role 78–81; morality
166–169 81–84; moral reading of the law
political policy-making 102–103 85–94
politics 224–229, 239–240; rule of recognition 29–30; emergence
independence of judiciary of BLS 38–43; flaws of the
233–235; popular sovereignty Kelsenian model 34–35; Hart’s
229–231, 231; rule of law rule of recognition 35–38; Kelsen
235–239, 238; separation of on revolutionary legality 30–34
powers 231–233 Rules of Procedure (of Parliament) 7, 110,
popular sovereignty 229–231, 231 139, 159
prime minister 136–138
private entities see public functions of secularism 58–62, 72–73; anti-
private entities; public-private coexistence 70–72; debates
dichotomy over the meaning of 62–64;
Proclamation of Independence 1, 6, justifications and critiques 64–70;
39–43, 59, 146, 188 new discourse 72
progressive taxation 218–220 “selective dictatorship” 150–154
property see right to property Sengupta, Suranjit 46, 137–139, 142,
Provisional Constitution of Bangladesh 165, 185–186, 198, 211–212,
Order (PCO) 6–7, 42–43 214, 219, 221
public functions of private entities 123 separation of powers 112–114, 125–126,
Public Interest Litigation (PIL) 13–16, 231–233; judicial review of
121–123 constitutional amendments
public-private dichotomy 123, 200–202 (JRCA) 119–121; judicial review
and the enforcement of human
Rahman, General Ziaur 9, 60, 147, 227 rights 123–124; judicial review of
Rahman, Sheikh Mujibur 4, 9, 40, 144, public functions of private entities
146, 166, 168–169 123; and the judiciary 114–119;
Rawls, John 209–211, 222–223; and limiting the state 131–132;
democratic socialism 220–222; principle of legality 124–125;
and economic and social rights public interest litigation (PIL)
213–214; and fair equality of 121–123
opportunity 215–217; ownership, sex-based discrimination 198–200
right to property, and equal single-dominant party system 174–176
liberty 217–218; and progressive social human rights 181–182; basic
taxation 218–221; and socialism structure of the Constitution
211–213 191–192; constitutional nature
246 Index
and functions of FPSPs 182–186; taxation see progressive taxation

judicial enforcement 186–191; 13th Amendment 103–107
status of 213–214 two-party system 169–174
socialism 211–213; democratic 220–222
social reality 65–66 undemocratic party system 154–157
sovereignty see popular sovereignty under-representation of women 206–207
Special Powers Act 1974 55, 238 United Kingdom see British
‘state and public life’ 195, 197–200, 218 constitutionalism
state religion 58–62, 72–73; anti- United States see American
coexistence 70–72; debates over constitutionalism
the meaning of secularism 62–64; Universal Declaration of Human Rights
justifications and critiques 64–70; (UDHR) 55, 142
new discourse 72
strategic political compromise 66–67 value see aspirational value
suppression of parliamentary opposition
157–158 war of independence 3–6
Supreme Court of Bangladesh 100–102; Westminster parliamentary system
Al Jazeera Documentary 150–152
Broadcast Case 107–1111; women 193–194, 207–208; and the
political policy-making 102–103; Constitution of 1972 194–198;
13th amendment judgment and the legislature 202–207; and
103–107; and women 198–202; the Supreme Court 198–202
see also Appellate Division
symbolic recognition 67–68 Zia, Khaleda 79, 173, 228

A History of The Constitution of Bangladesh - The Founding, - Ridwanul Hoque, Rokeya Chowdhury

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A History of the Constitution of

Marking the 50th anniversary of Bangladesh’s Constitution, this book gauges

Ridwanul Hoque is Senior Legal Ofcer at Charles Darwin University, Australia.

Rokeya Chowdhury is an independent law and society researcher and is

Comparative Constitutional Change has developed into a distinct ﬁeld of con-

Accommodating Diversity in Multilevel Constitutional Orders

Constitutional Law and Politics of Secession

For more information about this series, please visit: www.routledge.com/Comparative-Constitutional-

Edited by Ridwanul Hoque and

ISBN: 978-1-032-23329-1 (hbk)

1 The ﬁfty years of Bangladesh’s constitutional journey:

2 The emergence of Bangladesh’s legal system:

3 The Constitution of Bangladesh and international law 44

4 Secularism and Islam as the state religion: conﬂict

5 Rule of law within the constitutional scheme:

6 Judicial policy-making by the Supreme Court

7 Judicial review and the separation of powers: is one

8 Constituting limits and accountability of the executive

9 Parliament of Bangladesh: constitutional position and

10 Political parties in the process of constitution-making

11 Constitutional protection of economic and social human

12 Locating women within ‘we, the people’ in the

13 Justice as fairness and the Constitution of Bangladesh 209

14 Constitutionalism interrupted or constitutionalism

Kawser Ahmed is an advocate practising in the Supreme Court of Bangla-

Md Abdul Halim is a lawyer, practising in the Supreme Court of Bangladesh.

and Research (CHSR) at BUP, Dhaka, Bangladesh. She contributed a

14.1 Voice and Accountability Score of Bangladesh, 1996–2020 231

This edited volume is a celebratory project commemorating the 50th year

Aims and contribution of the book

This edited volume is a modest venture of presenting the contemporary his-

Making of the Constitution

11 On internally imposed constitutions, see Yaniv Roznai, ‘Internally Imposed Constitutions’ in

Eventually, the Pakistani army commenced an all-out crackdown on the

Constituent Assembly and the drafting of the Constitution

We the elected representatives of the people of Bangladesh, as hon-

Thus, the Proclamation constituted the new State of Bangladesh, formed a

Bangladesh’s constitutional journey

33 Ridwanul Hoque, ‘Constitutionalism and the Judiciary in Bangladesh’ in Sunil Khilnani,

government with advisors recommended by them. The president was also

49 See Hoque, ibid.

Constitutional achievements and innovations

Democracy and caretaker government system

One notable achievement of the Constitution is its commitment to repre-

constitutional amendment’ (UCA), which is better known as the basic struc-

Public Interest Litigation (PIL)58

The Basic Structure Doctrine (BSD)

party abused the BSD to gain an incumbency advantage by abolishing the

Constitutional failures and challenges

95 Nizam Ahmed, The Parliament of Bangladesh (Ashgate 2002).

rigged.98 By contrast, general elections under caretaker governments (1991,

Scope of the book: reﬂections and hopes

He argues that the decline of principled liberal-conservative bipartisanship in

Conclusions: what’s in the future’s vault?

The founding of the

Ours is an “autochthonous” constitution. “Autochthony” in its most

aim is to give . . . a constitutional instrument the force of law through its

A philosophical/theoretical account of how the Bangladeshi legal system came