Introduction

The preamble to the Constitution of Bangladesh is the introductory

statement that sets out the guiding purpose and principles of the
document. The preamble is not an integral part of the constitution in the
sense that it is enforceable in a court of law. Understanding the preamble
to the Bangladesh Constitution is important because it sets out the
purposes or functions of government as envisioned by the framers. In the
Preamble of Bangladesh Constitution function of the government is
described, and the function should be done by the citizens in order to
make a “more perfect democratic and socialist country” is also describe
History of Preamble
The US Constitution adopted in 1787 for the first time contained a
Preamble and thenceforth most of the new countries with written
constitution are adopting a preamble to their constitutions.
The Constitution of Bangladesh with a elaborate Preamble was written and
finally accepted on the 4th November, 1972 for conducting the state. It
took effected from the 16th December 1972. At a later stage at different
times many amendments to the constitution were made.According to this
amended constitution the state administration is going on.
What is Preamble?
Generally preamble is an introductory paragraph or part in a statute or
other document setting forth the grounds and intentions of it. Not only a
Constitution but also most of the statutes contain a preamble. The
preamble to an Act contains in a nutshell its ideals and aspirations in
other words, it sets out the main objectives which legislation is intended
to achieve. It is a key to the intention of the maker of the Act . Likewise
the preamble to a Constitution is its philosophy because it contains those
ideals and principals on the basis of which the whole structure of the
constitution is erected. But though in case of ordinary statues much
importance is not always attached to the preamble, extreme importance
is always attached to a preamble in a constitutional statute. The preamble
to a Constitution serves the following three main purposes:
It indicates the source of the Constitution i.e. the legal and moral basis of
the Constitution.
It expresses in a nutshell the ideas and aspirations of the Objectives of the
Constitution. The declared objection is the secure justice, liberty, equality
and fraternity to all the citizens. Thus, the preamble expresses the
political, moral and religious values which the constitution is intended to
promote. It works as the guiding star for the interpretation of the
Constitution.
The Preamble or the Philosophy of the
Bangladesh Constitution
The Preamble of the original Constitution of 1972 was amended by the
Martial Law Administrator and then validated by the 5th Amendment of
the Constitution. From this amended preamble we get the following
features of it:
It identifies the legal basis of the Constitution.
“We, the people of Bangladesh, having proclaimed our Independence on
the 26th day of March, 1971 and through a historic struggle for national
liberation, established the independent, sovereign People’s Republic of
Bangladesh”
These words mean that people is the source of all supreme power; People
are the real makers of this Constitution. The members of the Constituent
Assembly were all people’s representatives. The preamble, therefore,
indicates that the legal basis of our Constitution is the people-the ultimate
source of all power.
2. It identifies the moral basis of the
Constitution.
As the Constitution of Bangladesh has been adopted and accepted by the
people of Bangladesh and as it is the refection of the aspirations of the
people of Bangladesh, it is also the duty of this very people to obey it.
Again, as the supreme law of the land the constitution is the basis of law
and order in the country. If it is violated, then the whole governmental
order will be collapsed. It is, therefore, the moral duty of the people to
obey this constitution. This moral basis of the Constitution has a clear
recognition in the preamble-
“Pledging that the high ideals of nationalism, secularity, democracy and
socialism, which inspired our heroic people to dedicate themselves to, and
our brave martyrs to sacrifice their lives in the struggle for national
liberation, shall be fundamental principles of the Constitution;”
To elucidate the legal and the moral basis of our Constitution it is
pertinent to mention here two illustrations. It is said in the preamble of
the Indian Constitution-“We, the people of India…. In our Constituent
Assembly do hereby adopt, enact and give ourselves the Constitution.”
The preamble of Indian Constitution, therefore, indicates the people of
India both as the legal and moral basis of the constitution. But in fact the
legal basis of the Indian constitution is the Indian Independence Act, 1947
and not the people of India .Because India achieved its independence by
the operation of that Act. Again, there was no universal suffrage in the
election of the constituent Assembly. The people of India, therefore, had
neither direct nor indirect involvement in making of the constitution.
Likewise the US constitution was adopted in the Philadelphia Conference
in 1774 which was represented by the owners of the government
debentures, land lords, money-lenders, shipping business men and
owners of slave trade. No labor-representative neither any representative
of the cultivators was invited in that conference. But the conference
adopted the constitution declaring “We the people of United State….do
ordain and establish this constitution for the USA.”
To compare the Bangladesh constitution with the above mentioned two
constitutions it nay be said that there is no doubt as to source of the
Bangladesh constitution. It is certainly the people of Bangladesh. Because
the people of Bangladesh have achieved their independence through a
nine-month bloody struggler and the constitution was made and adopted
by the representatives who were directly elected by the people. It is, of
course, sometimes argued that the members of the constituent Assembly
were MNAs and MPAs of the erstwhile Pakistan; they were not elected to
act as representatives in the constituent Assembly of Bangladesh and no
election was held after independence.
3. It identifies the goal of the state.
“Further pledging that it shall be a fundamental aim of the State to realize
through the democratic process, a socialist society free from exploitation,
a society in which the rule of law, fundamental human rights and
freedoms, equality and justice, political, economic and social, will be
secured for all citizens;
Affirming that it is our sacred duty to safeguard, protect and defend this
Constitution and to maintain its supremacy as the embodiment of the will
of the people of Bangladesh so that we may prosper in freedom and may
make our full contribution towards international peace and co-operation in
keeping with the progressive aspirations of mankind;”
When enacted in 1972, the Constitution of Bangladesh was hailed by
international jurists and legal historians and as one of the most
progressive and democratic constitutions in modern history and one that
inspired progressive political aspirations among third world countries and
populations struggling for self-determination. However, amendments
during socialist one party and military rule in Bangladesh radically altered
the secular and liberal democratic nature of the constitution. In August,
2005, the Bangladesh High Court passed a landmark judgment that
declared constitutional amendments during military rule as illegal and
unconstitutional, and hence nullified. After several legal protests, the
Bangladesh Supreme Court, in January, 2010, ultimately announced that
the historic verdict of the High Court will be upheld. The judgment of
Bangladesh’s highest courts paved way for the return of the original
nature of the constitution, which defines Bangladesh as a secular
democracy
Preamble and the Operative Part of the
Constitute
Sometimes it is argued that the preamble is not include in the operative
part of the Constitution. It is not an integral part of the constitution in the
following senses.
Firstly, if it were dropped from the constitution would, in no way, be
hampered.
Secondly, it is not necessary that every statute or Constitution should
being with a preamble. The Government of India Act, 1935 though it was
the second Constitution of the British India, had no preamble.
Thirdly, the preamble of a Constitution is neither regarded as the source
of any substantive governmental power nor does it by itself import any
limitations on the exercise of powers not expressly or impliedly prohibited
by the constitution .
It was opined by the Supreme Court of USA that a preamble is not an
operative part of the Constitution. It indicates only the general purpose for
which the people ordained and established the Constitution. It has never
been regarded as the source of any substantive power conferred on the
government of the USA or any of its department’s.Similarly, the Supreme
Court in India has laid down in some cases that the preamble is not an
operative part of the Constitution and hence it can never be a source of
power. It has limited application and can be resorted to where there is any
ambiguity or where the object or meaning of any enactment is not clean.
Where the enabling part i.e. the operative part of the Constitution is
explicit and unambiguous, the preamble cannot be restored to, to control,
qualify or restrict. In other words, where the language or provisions of the
operative part are clear, full effect should be given to the operative part,
even though those provisions appear to contradict the terms of the
preamble . Also the Powell V. Kempton Park Race Course Co. Lord
Halsbury L.C. said-“ Two propositions are quite clear : one that a preamble
may afford useful light as to what the state intends to reach; and another,
that if an enactment is itself clear and unambiguous, no preamble can
qualify or cut down the enactment.
How far have the Objectives enshrined in the
Preamble been maintained in Bangladesh
To see how far the objectives enshrined in the preamble have been
maintained and ensured we have to examine the conditions of the
following concepts which are components of an exploitation-free society-
the ultimate goal of the state.
Rule of Law:
The provisions of the original constitution of 1972 were more or less
conducive enough to ensure rule of law in Bangladesh But only after nine
months of its adoption preventive detention, emergency etc. Black
provisions were inserted in the constitution through the second
Amendment arresting all the possible way to ensuring rule of law. Then in
1975 by the 4th Amendment multi-party democratic system was buried
and one party dictatorial presidential system was introduced undermining,
better to say, uprooting the spirit of constitutional supremacy, judicial
independence, rule of law and democracy.
In 1991 the 12th Amendment of the constitution was passed reverting the
governmental system from presidential to parliamentary and the first 12
years of the second parliamentary democracy has been completed. But
rule of law still remains a far cry. Because all the black provisions of the
constitution like emergency, preventive detention , ordinance-making
power of the president , involvement of the executive in the judiciary,
Article 70, CAG’s dependence upon the executive etc., as they stand now,
are insurmountable stumbling block against the ensuring rule of law .
Fundamental Rights:
The constitution provides for 18 fundamental rights and also their better
protection has been ensured in the constitution. But due to poverty and
the absence of any legal aid most of the poor people cannot enjoy their
rights and also preventive detention, emergency provisions etc. act as a
threat towards the enjoyment of fundamental rights.
Political, Economic and Social Equality
A large number of Social and Economic rights have got their Constitutional
recognition. But without a reasonable economic equity among people no
social or political equality can be ensured.32 years have passed since
Bangladesh achieved independence but economic inequality rather than
equality is reining the majority life of the people. No government took
stern measures to control the high growth rate of population and the rate
of literate people is going down to compare with the growth rate. But
there will be no political equality unless and until the people are educated
and politically conscious.
Recent View of Preamble
Thus the earlier view was that the preamble was not any operative part of
the constitution. But some recent judgments have given a quite different
view. In Kesavananda Bharti’s case the Indian Supreme Court held that
the preamble is a part of the constitution. Though in an ordinary statute
not much importance is attached to the preamble, all importance has to
be attached to the preamble of a constitution. Sikri C.J. said-‘it seems to
me that the preamble of our constitution is of extreme importance and
the constitution should be read and interpreted in the light of the grand
and noble vision expressed in the preamble’. According to the judgment of
this case the view taken in Berubari case was, therefore, wrong.
Legal Position and Utility of a Preamble
It is a well-established rule of interpretation that it is only when an Act is
ambiguous (that is, not clear), that a preamble can be made use of to
throw further light on the express provisions of the enactment. Thus, the
Preamble cannot be made use of to control an enactment, when the
enactment itself is expressed in clear and unambiguous terms. In other
words, an ambiguity cannot be created or imagined just to draw a
clarification from the Preamble, as that would mean frustration of the
main enactment .
The preamble seeks to give Bangladesh a Democratic Constitution, Art.21
should be read in such a way as would invalidate any law opposed to the
principals of natural justice. The Supreme Court, however, rejected this
argument, observing that the word “law” in Art. 21 refers to “position or
state-made law”, and not natural law or justice.
The preamble to the constitution was discussed by the Supreme Court,
where the Court said that in the words of the eminent jurist, Story, the
preamble was a ‘key to open the mind of makers’
In the same case, the Supreme Court observed that “….never-the less, the
preamble is not a part of the Constitution”. It is submitted with great
respect to their Lordships of the Supreme Court that such a view is not
correct, and that rightly speaking the preamble does form a part-and a
very significant one-of the constitution. In fact, in one case (Dalavi V.
State of Tamil Nadu, A.I. R. 1976 S.C. 1559), the Supreme Court itself
relied upon the preamble when striking down a pension scheme
formulated by the Government of India.
In one English case (Powell V. Kempton Park Race Course Co. (1899) A.C.
143), Lord Halsbury observed as follows:
“Two propositions are quite clear: one, that a preamble may afford useful
light as to what the statute intends to reach; and another, that if and
enactment is itself clear and unambiguous, no preamble can quality or cut
down the enactment.”
Weather Preamble can be Amended?
The question was raised for the first time before the Indian Supreme Court
in Kesavananda Bharati’s case .It was argued that since the preamble was
a part of the Constitution. It could be amended like any other provisions of
the constitution. The Court held that since the preamble is a part of the
constitution it can be amended subject to this condition that the ‘basic
features’ in the preamble cannot be amended. The court said,
“The edifice of our constitution is based upon the basic elements
mentioned in the preamble. If any of these elements are removed the
structure will not survive and it will not be the same constitution or it will
fail to maintain its identity. The preamble declares that the people of India
resolved to constitute their country into a Sovereign Democratic
Republic….. An amending power cannot be interpreted so as to confer
power on the parliament to take away any of these fundamental and basic
Characteristics of policy”.
It is pertinent to mention here that the Supreme Court of Bangladesh also
held in the 8th Amendment case that preamble is a part of the
constitution and it is a basic structure of our constitution. It is also
noteworthy that though the Supreme Court held that the parliament
cannot amend any basic structure of the constitution like the preamble,
this very preamble was altered by the martial law administrator and was
later validated by the parliament .
142. Power to amend any provision of the Constitution (1)
Notwithstanding anything contained in this Constitution- (a) any provision
thereof may by 92 amended by way of addition, alteration, substitution or
repeal by Act of Parliament: Provided that- (i) no Bill for such amendment
91* * shall be allowed to proceed unless the long title thereof expressly
states that it will amend 91* * a provision of the Constitution; (ii) no such
Bill shall be presented to the President for assent unless it is passed by
the votes of not less than two-thirds of the total number of members of
Parliament; (b) when a Bill passed as aforesaid is presented to the
President for his assent he shall, within the period of seven days after the
Bill is presented to him assent to the Bill, and if he fails so to do he shall
be deemed to have assented to it on the expiration of that period.
(2) Nothing in article 26 shall apply to any amendment made under this
article.
Conclusion
The preamble is a part of the Constitution but it is not necessarily the part
of the enacting or operative part of the Constitution, and the court cannot
enforce it directly. The preamble, therefore, bears no legal significance.
But it has other important significance which is sometimes more than
legal importance.
First, it is the preamble which identifies the legal source or base of the
Constitution. Legal base of the Constitution means wherefrom the validity
and power of the Constitution is derived,
Second, it indicates the moral basis or the philosophy of the whole nation.
The logic which works behind obeying a Constitution as the supreme law
is its moral philosophy.
Third, the preamble works as a guiding star for the whole nation .Because
it is pledged in the preamble that all government al works would be
administered in conformity with preamble and taking it as a pole star.
Fourth, the preamble has a great interpretative significance. Where any
operative part of the Constitution is ambiguous the preamble can be
resorted to clarify that part or wordings.