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November 1, 2003 

4th November

Plea for a Constitution Day!  

Shahdeen Malik

In a speech, in Maryland, USA on 17th May of this year the Prime Minister of Norway, Kjell Magne Bondevik said: "Today is the day all Norwegians look forward to every year. May 17 has become a magic date, a day for parades, music and ice cream. Throughout the length and breadth of Norway we come together people of all ages, from all walks of life to celebrate our national unity, our democracy and our traditions."

17th May is Norway's Constitution Day, and this year the Prime Minister of Norway celebrated it in the USA.
5th February, the Constitution Day of Mexico, is a public holiday. And the Americans celebrate their Constitution Day on 17th September.

The Constitution on the Constitution
In the Preamble of our Constitution, a solemn date is mentioned 4th November. The Preamble of the Constitution reminds us that we, the people of Bangladesh, had given "to ourselves" this Constitution on the 4th November, 1972. In the words of the Constitution:
"In our Constituent Assembly, this eighteenth day of Kartrick 1379 B.S., corresponding to the fourth day of November 1972, A.D., do hereby adopt, enact and give to ourselves this Constitution."

The Preamble also provides:
"… it is our sacred duty to safeguard, protect and defend this Constitution and to maintain its supremacy as the embodiment of the will of the people of Bangladesh…"

Article 21, in part, provides:
"It is the duty of every citizen to observe the Constitution ….."

More importantly, the Oath of Office is also in terms of the Constitution"

"I will preserve, protect and defend the Constitution… "

The Third Schedule of the Constitution contains the oath of office required for the nine 'constitutional' offices. Of these nine offices, the Oath of Office of the President; Prime Minister, including Ministers, Ministers of State and Deputy Minister (Chief Advisors and Advisors, when applicable); Speaker; Deputy Speaker; Chief Justice and Judges (of the Supreme Court); Chief Election Commissioner and Election Commissioners; Comptroller and Auditor General; and Chairman and Members of the Public Service Commission contain the above phrase.

A Member of Parliament also takes an Oath of Office but her/his oath does not include the obligation to "preserve, protect and defend the Constitution", presumably because a Member of Parliament does not have executive powers.

Since the return to democracy through parliamentary election in 1991, many of the national issues, concerns and debates have certainly been grounded in the Constitution. The debate about the Care Taker Government of the early 1990s, and return to the Parliamentary form of government from the Presidential (introduced by the 4th Amendment to the Constitution, and continued during the regimes of army generals), soon after the 1991 election were constitutional issues of the earlier period while the Supreme Judicial Council, which is at the centre of national attention and deliberations now, is also grounded in the Constitution.

A bit of history
In terms of the origin of our state, the liberation war of 1971 was legally fashioned as the war to realise the right of the people to frame and give to themselves a Constitution. This is reiterated in our Proclamation of Independence as well. One may recall that the general election of 1970 was for electing a Constituent Assembly to frame and adopt a Constitution. It was not a parliamentary election for forming a government of Pakistan. Pakistan, at that time, did not have a Constitution as the 1962 Constitution of Pakistan was abrogated in 1969 by General Yahya Khan and Pakistan needed a Constitution to lay down provisions for parliamentary election and the formation of a government.

Following from the above proposition and after the coming into force of the Constitution on the 1st anniversary of our independence 16th December 1972 the Constituent Assembly elected in 1970 stood dissolve. The task, for which we elected the representatives to the Constituent Assembly, was accomplished -- the Constitution was framed and enacted. Hence, there was no need for the Constituent Assembly to continue. After the dissolution of the Constituent Assembly in December, 1972, the first parliamentary election, under the Constitution, to form a government was held in March, 1973.

Constitution limits power
The constitution, needless to say, can be read in many different ways, with various nuances and priorities. For me the Constitution is most important on two counts: it sets the goals and visions of the society we want in Bangladesh and for which the liberation war was fought and, secondly, it limits the power of those 'in the power'.

Almost all articles of the Constitution can be read as limiting the power of those 'in the power'. For example, the Constitution limits the President's power to two functions: nomination and selection of the Prime Minister and the Chief Justice, though on a few other matters he can have a limited say. Also, the President must strictly follow the Constitution, as otherwise, "The President may be impeached on a charge of violating this Constitution ……" [Article 52(1)]. Similarly, the Constitution defines and limits the functions and power of all the important posts/and positions in the country. Incumbent in any of these posts and positions can only do what the Constitution permits them to do, and also only in the manner prescribed by the Constitution.

The provisions which limit the powers of those 'in the power' most drastically and effectively are the Articles guaranteeing our fundamental rights. It's a different matter that those 'in the power' exceed the limit. Only last week the killing of three persons in different police custodies have made headlines. This would not have happened if the police power were actually restricted by the Constitution which prohibits all kinds of torture and cruel, inhuman and degrading punishment or treatment [Article 35(5)].

Our official budget, the accounts of government's incomes and expenditures, is a law, passed by the parliament, as provided for by the Constitution. The government's fiscal powers are, thus, also limited by the Constitution.

One can go on and on to cite various other similar examples of how the Constitution limits the power of those 'in the power'. Ultimately, as the Constitution itself provides in Article 7, the power belongs to the people and not those 'in the power'. It is just that for a limited period (5 years) the people entrust a particular group to exercise the people's power, on behalf of the people, within the limits set by the people in the Constitution.

Goals and visions of the Society
The other fundamental aspect of the Constitution is that it sets out the goals and visions of the future prosperous society in Bangladesh. This vision is contained in Part 2 of the Constitution and this Part is called: "Fundamental Principle of State Policy". These policies provide, for example, that it is the responsibility of the State to take measures for securing to its citizens the provisions of the basic necessities of life, including food, clothing, shelter, education and medical care; or to provide guaranteed employment at a reasonable wage, and so forth. These visions are not limited to basic necessities only but also includes, for example, measures to conserve the cultural traditions and heritage of the people.

It's a different matter that this Part 2 has been subjected to numerous amendments, to transplant a different vision of the society. For example, the principle of secularism which had provided (in Article 12) for the elimination of communalism in all its forms as well as elimination of the abuse of religion for political purposes, and elimination of any discrimination against, or persecution of, persons practising a particular religion as subsequently been deleted from the Constitution. Hence, currently after Article 11 in the Constitution, the next Article is Article 13. Article 12 of the original Constitution has been deleted, but not replaced by a new Article.

Plea for a Constitution Day
I am sure there is no disagreement that we must govern ourselves in terms of rule of law, where the separation of power and independence of the judiciary are the cornerstones, along with due and respect for and guaranteed adherence to the fundamental rights of the people (irrespective of their religion, race, caste, sex or place of birth). And the powers exercised are only those which the people delegate to a particular group (political party/parties) and this delegation for a limited period (5 years) is affected through general elections.

These are all constitutional premises and promises and isn't it time, after 32 years of the adoption and coming into force of the Constitution, that we renew the pledge to be governed only in terms of the Constitution, once a year. A "Constitution Day" on 4th November (the date of birth of the Constitution) would be such an occasion to renew our pledge to ourselves to be governed democratically under the Constitution.

One can understand that those in power may not be very keen on designating the 4th November as the Constitution Day. Such a day would be a reminder of the limits of their power, and of the responsibilities cast upon them by the Constitution to exercise the power in manners and methods expressly dictated by the Constitution. However, such a day is necessary precisely for those very reasons, i.e., we the people have agreed to be governed only in terms of the Constitution. Any exercise of power beyond the Constitution is illegal, ab initio.

It shouldn't be out of context to note that we are almost afflicted with proliferation of "days". We hardly have a fortnight without some "day" or other to celebrate or commemorate. Various UN related "days"; environment (quite a few of these), housing, immunisation, peace, disarmament "day"s and so on are celebrated and 'covered' by the media with all kinds of messages from the high and the far.

Some organisations, for a few years now, have began to arrange programmes and events on the 4th November to renew our pledge to abide by our Constitution. This now need to be done on a national initiative.

Dr. Shahdeen Malik , Advocate, Supreme Court.