Modern constitutional history
The advent of British rule in the 18th century displaced the centuries of governance developed by South Asian empires. The Regulating Act of 1773 passed by the Parliament of the United Kingdom was the first basic law in the Bengal Presidency. The British Empire did not grant universal suffrage and democratic institutions to its colonies. The British slowly granted concessions for home rule. The Government of India Act 1858, Indian Councils Act 1861, Indian Councils Act 1892 and Indian Councils Act 1909 were later important laws of government. The legislatures of British India included the Bengal Legislative Council and the Eastern Bengal and Assam Legislative Council in the early 20th century. The Nehru Report recommended for universal suffrage, a bi-cameral legislature, a senate and a house of representatives. The Fourteen Points of Jinnah demanded provincial autonomy and quotas for Muslims in government. The Government of India Act 1935 established provincial parliaments based on separate electorates.
The 1940 Lahore Resolution, supported by the first Prime Minister of Bengal, asked the British government that "the North Western and Eastern Zones of (British) India should be grouped to constitute ‘independent states’". It further proclaimed "that adequate, effective and mandatory safeguards should be specifically provided in the constitution for minorities in these units and in the regions for the protection of their religious, cultural, economic, political, administrative and other rights". The resolution's status is akin to the magna carta in Bangladesh and Pakistan, in terms of the concept of independence. On 20 June 1947, the Bengal Legislative Assembly voted on the partition of Bengal. It was decided by 120 votes to 90 that, if Bengal remained united, it should join the Constituent Assembly of Pakistan. At a separate meeting of legislators from West Bengal, it was decided by 58 votes to 21 that the province should be partitioned and that West Bengal should join the Constituent Assembly of India. At another separate meeting of legislators from East Bengal, it was decided by 106 votes to 35 that Bengal should not be partitioned and 107 votes to 34 that East Bengal should join the Constituent Assembly of Pakistan if Bengal was partitioned. On 6 July 1947, the Sylhet referendum voted to partition Sylhet Division from Assam Province and merge it into East Bengal. On 11 August 1947, Muhammad Ali Jinnah, the president of the Constituent Assembly of Pakistan, declared that religious minorities would enjoy full freedom of religion in the emergent new state.
Union with Pakistan
Section 8 of the Indian Independence Act 1947 provided that the Government of India Act, 1935 with certain amendments and adaptations would be the working constitution of the Dominion of Pakistan during the transitional period. The Constituent Assembly of Pakistan included 79 members, of whom 44 were from East Bengal, 22 from West Punjab, 5 from Sind, 3 from the North West Frontier Province, 1 from Baluchistan and 4 from the acceding princely states. The Bengali Language Movement and demands for replacing separate electorates with joint universal suffrage were key issues in East Bengal. The first constituent assembly was arbitrarily dissolved by the Governor General in 1954. This led to the court challenge of Federation of Pakistan v. Maulvi Tamizuddin Khan, in which the federal court supported the Governor General’s decision, although Justice A. R. Cornelius expressed dissent. The dissolution of the assembly was one of the first major blows to democracy in Pakistan.
The Constitution of Pakistan of 1956 was adopted by a second constituent assembly elected in 1955. It declared two provinces- East Pakistan and West Pakistan; and two federal languages- Urdu and Bengali. The first Pakistani constitution was in place for only a few years. General Ayub Khan staged a military coup and introduced the Constitution of Pakistan of 1962. The 1962 constitution introduced a presidential system in which electoral colleges would be responsible for electing the president and governors. The chief ministers' offices were abolished; and parliament and provincial assemblies were delegated to a mainly advisory role. The system was dubbed "Basic Democracy". In 1965, Fatima Jinnah's failed bid for the presidency prompted allegations of a rigged electoral system. The Six Points of Sheikh Mujibur Rahman demanded parliamentary democracy. Rahman’s Six Points were part of the manifesto of the Awami League, the party which won first general election in East and West Pakistan in 1970. The Awami League ran on the platform of developing a new Pakistani constitution based on the Six Points. The League won 167 out 169 East Pakistani seats in the National Assembly of Pakistan and 288 out of 300 seats in the East Pakistan Provincial Assembly. The refusal of Pakistan’s military junta to transfer power to Prime Minister-elect Sheikh Mujibur Rahman triggered the Bangladesh War of Independence.
The Provisional Government of Bangladesh issued the Proclamation of Independence on 10 April 1971, which served as the interim first constitution of Bangladesh. It declared “equality, human dignity and social justice” as the fundamental principles of the republic. East Pakistani members of Pakistan’s federal and provincial assemblies were transformed into members of the Constituent Assembly of Bangladesh. The constituent assembly had 404 members. After the war, the Constitution Drafting Committee was formed in 1972. The committee included 34 members with Dr. Kamal Hossain as its chairman.
The Constitution Bill was introduced in the Assembly on 12 October. Its first reading began on 19 October and continued till 30 October. The second reading took place from 31 October to 3 November. Manabendra Narayan Larma made an impassioned appeal to declare the term of citizenship as “Bangladeshi” instead of “Bengali”. Larma argued that labeling all citizens as Bengali discriminated against non-Bengali communities, including his own Chakma ethnic group.
The third reading began on 4 November and it approved 65 amendments to the Constitution Bill and adopted and enacted the Constitution on 4 November. The Constitution came into effect on 16 December 1972. A Westminster style political system was established. It declared nationalism, socialism, democracy and secularism as the fundamental principles of the republic. It proclaimed fundamental human rights, including freedom of speech, freedom of religion, freedom of movement, freedom of assembly, the right to education and public healthcare among others. A two thirds vote of parliament was required to amend the constitution.
After winning the 1973 general election, the Awami League government often flouted constitutional rules and principles. The government received strong criticism from the Bangladeshi press, including both Bengali and English newspapers. The Committee for Civil Liberties and Legal Aid was formed to defend the constitution. The Awami League enacted three constitutional amendments between 1973 and 1975. The most drastic amendment was in January 1975. It introduced a one party state and a presidential government, while the judiciary’s independence was greatly curtailed.
Constitutional rule was suspended on 15 August 1975 with the assassination of President Sheikh Mujibur Rahman and the declaration of martial law. The Chief Martial Law Administrator issued a series of Proclamation Orders between 1975 and 1979 which amended the constitution. Lieutenant General Ziaur Rahman is credited for many of these Proclamation Orders. The most significant of these orders was defining citizenship as Bangladeshi; other orders included the insertion of religious references and the controversial Indemnity Ordinance. In 1979, martial law was lifted, multiparty politics was restored and constitutional rule was revived. The Fifth Amendment in 1979 validated all Proclamation Orders of the martial law authorities. An executive presidency continued until 1982.
Martial law was again imposed in the 1982 Bangladesh coup d'état. When constitutional rule was restored in 1986, the Sixth Amendment validated previous Proclamation Orders issued by the Chief Martial Law Administrator. The Eighth Amendment in 1988 declared Islam as the state religion and initiated limited devolution of the judiciary.
In 1990, a pro-democracy uprising ousted President Ershad. The uprising was followed by parliamentary elections in 1991. The Twelfth Amendment passed by the fifth parliament is the most influential constitutional amendment in Bangladesh. It re-established parliamentary government. It amended Articles 48, 55, 56, 57, 58, 59, 60, 70, 72, 109, 119, 124, 141A and 142. The Prime Minister became the executive head of government, and along with the cabinet, was responsible to parliament. Local government was made more democratic. However, the amendment restricted the voting freedom of MPs. According to Article 70, MPs would lose their seat if they voted against their party. This made it impossible for parliament to have a free vote, including no-confidence motions to remove a prime minister. Experts have described the amendment as instituting prime ministerial dictatorship. The Thirteen Amendment in 1996 introduced the Caretaker government of Bangladesh.
In 2010, the Supreme Court of Bangladesh ruled that the Fifth Amendment of 1979 went against the constitutional spirit of the country and hence invalidated its removal of clauses related to secularism. The Supreme Court gave the verdict in the case of Bangladesh Italian Marble Works Ltd. v. Government of Bangladesh. While implementing the supreme court's verdict in the Fifteenth Amendment in 2011, the Awami League-led parliament abolished the caretaker government system, which the party itself had advocated in 1996.
In 2017, the Supreme Court declared the Sixteenth Amendment Act of 2014 illegal and void. The amendment had introduced the provision of impeaching judges in parliament. The Supreme Court held that parliament cannot have conscience votes due to Article 70.