Authored By: Md. Salmun Alam
East West University
Abstract
Constitutionalism reflects one of the most basic ideas of modern public law. While many states possess either a written constitution or an unwritten one, not all states genuinely adhere to constitutionalism. Constitutionalism is more than just having some document called a constitution. It sets up a way for government to work where power gets checked and followed by legal rules. That is the main idea anyway. In reality the key part is how it stops power from building up in one place or getting misused. State parts all have to stay inside those set boundaries from the constitution. It feels like that is what makes limited government possible along with the rule of law. This piece looks at constitutionalism that way. As the basis for keeping things limited and lawful. Some might say it is the heart of it all, but I am not totally sure if that covers everything. It delves into the concept and evolution of constitutionalism while analyzing its core elements in order to evaluate its practical operation through comparative constitutional experiences. In that regard, special reference has been given to Bangladesh.
Introduction
Constitutionalism is a doctrine where the authority of a government is determined and limited by a body of laws or a constitution. It seeks to prevent arbitrary government by establishing mechanisms that determine who can rule, how, and for what purposes. The primary objective of constitutionalism is the establishment of limited government. In reality, it is true that the governmental authority originates from the people and must therefore be exercised subject to legal and institutional constraints, which is recognized under the constitutional system in contrast to absolute or arbitrary rule. These constraints are reflected through constitutional supremacy, separation of powers, protection of fundamental rights, judicial oversight, etc.
The principle of the Rule of Law forms an essential pillar of constitutionalism. It requires that all individuals and institutions, including the state itself, be subject to and accountable under the law.
John Austin has stated, “Law is the command of the sovereign.”
Meaning sovereign (kings in old times, but in modern times it is the government) here is the supreme authority and cannot be dealt with by law. But constitutionalism rejects the idea of any supreme authority over law and protects individual rights.
Evolution of Constitutionalism
Before the modern era the English monarchy system was quite popular. But after a very long period people used to question the basis of their rules. The system suggested that the king would be selected by the archbishop on a divine method. When asked where the divinity came from, there was no right answer and thus the seed of constitutionalism started to sprout with democracy.
While tracing back, one of the earliest origins in this regard is the Magna Carta of 1215. It imposed limitations on the authority of the English monarch and affirmed that the ruler was subject to the law. Although the scope was limited, the Magna Carta laid down the groundwork for the development of constitutional restraint by establishing that governmental power could not be exercised arbitrarily. With the flow of time, this idea evolved through English constitutional traditions, and this includes the development of parliamentary supremacy.
The modern concept of constitutionalism developed significantly during the 18th and 19th centuries. The adoption of written constitutions in the United States and France and the incorporation of the principles of separation of powers, checks and balances, and protection of fundamental rights actually boosted the idea further. Following the Second World War, constitutionalism gained renewed importance as states sought to prevent the recurrence of totalitarian abuses of power. This period marked a shift from purely political constitutional control to legal and judicial mechanisms of enforcement.
Supremacy of the Constitution
The principle of constitutional supremacy lies at the heart of constitutionalism. Any act inconsistent with the constitution is liable to be declared invalid. It establishes a hierarchy of laws in which the constitution occupies the highest position. This principle prevents the arbitrary exercise of authority by subjecting all state actions to constitutional scrutiny.
In Bangladesh, the supremacy of the constitution is expressly recognized in Article-7 of the Constitution. Where it declares the constitution to be the supreme law, and in clauses- 1 and 2 there is a restriction upon the power of parliament in terms of enacting any law.
Case Law- Anwar Hossain Chowdhury v. Bangladesh
The true implication of Article 7 of the Constitution can be found in the arguments of petitioner. Where they argued that this article expressly speaks of the –
supremacy of the people and the Republican character of the State and government,
supremacy of the constitution as the solemn expression of the will of the people,
voidability of other laws inconsistent with this supreme law and
limited government with three organs performing functions by and under the authority of the constitution.
Rule of Law
The term ‘Rule of Law’ is derived from the French phrase “La Principe de Legality”- meaning the Principle of Legality in English. This refers to a government based on principles of law and not of men. As Professor Stephen Holmes stated, “Only a constitution that limits the capacity of political decision makers to silence their sharpest critics can enhance the intelligence and legitimacy of decisions made.”
That signals- Rule of law not only limits the arbitrariness of the government but also makes the government more intelligent while making its decision.
Professor A.V. Dicey explained this concept for the first time in his classic book The Law and the Constitution published in 1885. Dicey’s concept of Rule of Law has at least three distinct concepts:
Absence of Arbitrary Power or Supremacy of Law
Equality before law
Constitution is the result of the ordinary law of the land
According to Dicey, Englishmen were ruled by law and by law alone. Nobody is to ‘suffer in body and in goods’ unless he has committed a ‘distinct breach of law.
Rule of Law Can Be found in the Constitution of Bangladesh-
The government must run in accordance with the law under Article 7.
Equality before law, Equal Protection of law and Nondiscrimination have found their place in Article 26, Article 27, and Article 146 of the Constitution.
Reasonable Classification has been articulated in- Articles 28(4), and 29(3) of the Constitution.
Treatment in accordance with law adhere to Article 31 of the Constitution.
The independence of Judiciary is regulated under- Article 94(4) and Article 96 of the Constitution. While Articles 96 and 147 protect the security of tenure, terms and conditions of service of the judges of the Supreme Court, from executive interference.
Access to justice is ensured as per Articles 44 and 102 along with the statutory laws.
Separation of Powers
The doctrine of separation of powers is another essential component of constitutionalism. It enjoys a general form as ‘an invaluable precept in the science of politics’. It divides as if the government is a tree, and the institutions are three branches: legislative, executive, and judicial. The legislature enacts the laws, the executive puts the laws into execution, and the judiciary interprets the laws. The powers and functions of each institution are separate and carried out by separate personnel. However, to ensure that every single agency is unable to exercise complete authority, each is made cross-dependent on the other.
Case Law:
In Sheikh Abdus Sabur v. Returning Officer the petitioner wanted the court to declare a law ultra vires. The law prescribed that bank loan defaulting candidates shall be disqualified from seeking election to the Union Parishads. At that time there was no such law providing such disqualifications for the candidates of Parliamentary election. In response ATM Afzal J. nicely stated:
I do not think that this court has any duty under the Constitution to offer unsolicited advice as to what the Parliament should or should not do. As long as …..Parliament itself to respond in the manner it thinks best. While prescribing the new disqualification….but he cannot sit in the Union Parishad or a local body. The Members of Parliament owe an answer to this, not the Court. But now they have declared Islam as the State religion of the Republic by the Constitution (Eighth Amendment) Act 1988, I shall contend myself reminding them two verses from the Holy Quran: 2. Ye who believe! Why say ye that which ye do not? Grievously odious is it in the sight of God That ye say that which ye do not.(Sura Saff: Ayat 2 and 3)”
This version of separation of power is usually known as Checks and Balances. It is based on the idea that accumulation of power in a single authority leads to tyranny, while its decentralization among separate organs promotes accountability and liberty.
Judicial Review
Judicial review is one of the most effective institutional mechanisms for preserving constitutionalism and ensuring limited government. The Constitution has made provision for judicial review of laws and governmental action and invested the High Court Division with the power of judicial review under Article 102 and further providing for appeal before the Appellate Division under Article 103. In the famous case of Anwar Hossain Chowdhury v. Bangladesh the Appellate Division declared this power of judicial review as a basic feature of the Constitution which cannot be curtailed or modified even by any amendment of Constitution.
Protection of Fundamental Rights
In Bangladesh, fundamental rights are guaranteed under Part III of the Constitution. These rights impose both negative and positive obligations upon the state. Negatively, the state is restrained from enacting or enforcing laws that unjustifiably infringe upon constitutional rights. Positively, the state is required to take reasonable measures to ensure the effective enjoyment of these rights. Article 26 renders void of any law inconsistent with fundamental rights, thereby reinforcing constitutional supremacy.
Constitutionalism and July-2024
From the above analysis, the benevolent side of constitutionalism can be seen. However, it is also true this had been used as a weapon in the recent July mass upsurge of 2024 in Bangladesh. The constitution provides the guidelines that are to be followed by the government, and these are no ordinary guidelines like the advisory opinion of the Supreme Court under Article-106 rather these are the ultimate laws that would prevail in any case of distortion when it occurs. But the recent incident of July-2024 has set an example of non-compliance towards the supreme law of the country.
Constitutional morality and July-2024
The concept of constitutional morality refers to the ethical and normative values that build the constitutional order. It requires the state authorities to act not merely within the letters of the constitution but in a way that upholds the democratic principles. It demands respect for institutional boundaries, individual rights, and the spirit of limited government.
Constitutional morality presumes particular importance in special situations where constitutional provisions are ambiguous or where political actors attempt to exploit legal loopholes for partisan advantage. Like what happened in July 2024. A Fact-Finding Report by the UN Office of the High Commissioner for Human Rights (OHCHR) has revealed that around 1,400 people were killed during the July 2024 uprising in Bangladesh. The question obviously remains what the authority was doing at such a dire time.
Violations and loopholes
The violation of democracy actually seems puny when the violation of fundamental rights comes into play. As per Article-32 the right to live is a fundamental right not only in Bangladesh but also recognized in the whole world. But the unarmed students lost their lives in protest. While the government was taking shelter behind the curtain of terrorism. They used the loophole of the Constitution as the power of the PM is unfettered and faces less restrictions as per Article-(55-58).
This recent incident has shown that the sectors of Judiciary and Public Services are a playhouse of favoritism and politics. Because the executives went along with the government without questioning the merit of such actions. Ultimately though the regime changed but the situations remain same.
Comparative Perspective on Constitutionalism
(United Kingdom, United States, and Bangladesh)
The United Kingdom presents a unique model of constitutionalism as there is absence of a single written constitution. Traditionally, the doctrine of parliamentary sovereignty holds a central position and thus suggests that Parliament possesses supreme legislative authority. However, behind the evolution of constitutionalism in the United Kingdom there were constitutional conventions, common law principles, and judicial decisions. The rule of law, as articulated by Dicey and subsequently developed by the courts, functions as a key constitutional principle. The individual rights and the protection of every citizen are feats that Bangladesh has yet to achieve.
The United States Constitution on the other hand explicitly embodies the principles of limited government through separation of powers, checks and balances, and an established bill of rights. The system looks like Bangladeshi one, but Judicial review occupies a central position within this framework, enabling courts to invalidate legislative and executive actions that contravene constitutional provisions. The American model demonstrates how a rigid constitutional structure, coupled with strong judicial enforcement, can effectively restrain governmental authority and preserve constitutional supremacy.
Bangladesh adopts a written constitutional framework that draws inspiration from both British and American constitutional traditions. The Constitution of Bangladesh establishes constitutional supremacy, guarantees fundamental rights, and empowers the judiciary to enforce constitutional limits through judicial review. Articles 7, 26, and 102 collectively reinforce the principles of limited government and the rule of law. The Supreme Court of Bangladesh has played a vital role in interpreting constitutional provisions and safeguarding fundamental rights, thereby contributing to the development of constitutionalism in the country.
Conclusion and Way Forward
Constitutionalism sounds great on paper, with all its talk about limited government and the rule of law, but in real life, it runs into a lot of problems in different legal systems. Constitutions lay out these big ideals yet making them work comes down to how strong the institutions are, what the political culture is like, and if people really respect those values.
Take the way executive power can get too concentrated, for example. In democracies with constitutions, leaders in the executive branch often push to grab more control, especially when things are unstable or there’s some kind of emergency. Sure, constitutions might allow for emergency powers, but if they get misused or dragged out too long, it starts chipping away at the protections and makes it harder for the legislature or courts to keep watch. The real-time example is July 2024.
Another big issue is judicial independence is getting undermined. We need courts that stand on their own to enforce limits and protect rights, right? But when politics meddles with appointments or decisions, it messes up that autonomy. Then things like judicial review don’t work as well, and keeping the constitution on top becomes a real struggle.
Amendments to the constitution can be a problem too if they happen too often or just to suit some political agenda. They are meant to let the system adapt but using them to lock in power or water down rights goes against the idea that core values shouldn’t change with every election cycle.
And let’s not forget the gap between what the constitution promises and how things are in society. With inequalities in money and access, plus not everyone knowing their rights or being able to get to courts, a lot of people can’t really use those protections. So, constitutionalism might be there in theory, but for big parts of the population, it’s out of reach.
To fix these challenges, it’s not enough to just have the text of the constitution. We need institutions that stay solid, people respecting the moral side of it, and courts that actually commit to the rule of law. Without such action it is safe to say that constitutionalism could lose what makes it powerful for change.
REFERENCE(S):
BOOKS:
The constitution of the People’s Republic of Bangladesh.
An Introduction To The Constitutional Law Of Bangladesh- By DR.M. Jashim Ali Chowdhury
Interpretation Of Statutes and Documents- By Mahmudul Islam
Constitutional Law of Bangladesh- By Mahmudul Islam
