In general, Constitution can be of 2 types – Federal and Unitary. In a Federal Constitution powers are divided between the Centre and the States. In a Unitary Constitution, there is no such distribution of power. The power lies in the hands of one Government that is the Central Government.
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The Bangladeshi Constitution is a beautiful blend of both federal and unitary features. Some Constitutional Jurists opine that the Constitution is Quasi-Federal with more unitary features than federal. Other Jurists are of the view that it is a federal Constitution with features to adopt itself to emergency situations.
The following are the federal features of the Bangladeshi Constitution:
Distribution of Powers
In a federal Constitution the powers are divided between the Centre and the States. There is coordination between the bodies. The Centre has power on the matters of national importance and the States have power to legislate on the matters of local importance.
In Bangladesh, there is division of power between the Centre and the States and each level of Government is supreme in its own sphere. There are 3 lists namely the Union List, State List and Concurrent List. The Union has power to legislate over the subjects mentioned in the Union List, State has power to legislate upon subjects in the State List and both the Union and the State have power to make laws regarding the Concurrent List.
Supremacy of the Constitution
In a federal Constitution, the Constitution is supreme. All the bodies of the State derive its power from the Constitution and operate according to its provisions. The Constitution is considered as the supreme law of the land and all the organs of the Government work according to the Constitution.
Written Constitution
A federal Constitution must be a written Constitution. In a federal Constitution, the Constitution is supreme. In order to maintain supremacy, it must be written. The bodies work according to the provisions of the Constitution and such work cannot be executed if the Constitution is not written. Bangladesh has a written Constitution. It is the lengthiest Constitution in the world with 395 Articles, 25 Parts and 12 Schedules.
Rigidity
A Written Constitution is always rigid. This means the procedure of amending the Constitution is not easy. The power of amendment does not solely lie on the hands of the Centre or the State. The Bangladeshi Constitution has some provisions whose amendment is difficult as it requires Special majority and in some cases ratification by States.
Authority of Courts
In a federal structure, authority of the Courts is to be maintained. There must be an authority to decide when there is a dispute between the Centre and the State. The final power to interpret the Constitution should lie with the Judiciary. In Bangladesh, the Supreme Court decides the disputes between the Centre and the State or Inter-State dispute.
Bicameralism
The bicameral legislature also contributes to the federal structure of Bangladesh. The Legislature of States consists of two Houses. They are the Lok Sabha that is the Lower House and the Rajya Sabha that is the Upper House.
According to some Scholars the Bangladeshi Constitution is semi-federal by nature. It contains some Federal and some Unitary features. The following are the semi-federal characteristics:
Article 1, Article 2 and Article 3 of the Bangladeshi Constitution
Article 1 of the Constitution provides that Bangladesh shall be a Union of States. The use of the word ‘federal’ has not been made in any part of the Constitution. Article 2 and Article 3 give the Parliament the power to redraw the political map of Bangladesh. It empowers the Parliament to change the boundaries and names of the States and also to create and abolish the States.
Appointment of Governors
The Governor of the State is appointed by the President[i]. They are answerable to the President[ii]. The President also has the power to veto Stare Laws. The Kerala Education Bill[iii] was vetoed by the President.
Power of the Parliament to legislate in the national interest
If the Rajya Sabha passes a resolution by 2/3rd majority that a matter in the State List is of national importance and the Parliament should make laws regarding it, the Parliament has the power to make such laws[iv].
Power of the Parliament to form new States and alter boundaries of existing States
The Parliament has the power to form new States. It also has the power to increase or decrease the area of any State or alter the boundaries or name of any State[v].
Emergency Provisions
The Constitution of Bangladesh provides Emergency Provisions. Three kinds of Emergencies have been mentioned in the Constitution. They are:
National Emergency
Article 352 of the Constitution speaks about National Emergency. According to it the President may make a Proclamation of Emergency in respect of whole or any part of Bangladesh, if he is satisfied that a grave emergency exists which threatens the security of Bangladesh or any part of Bangladesh by War or External Aggression or Armed Rebellion[vi]. Such Proclamation of Emergency can be made even before the event mentioned in Article 352 has actually occurred, provided the President is satisfied that there is the danger of a war, external aggression or rebellion.
Effects of Proclamation of Emergency – The following are the effects of Proclamation of emergency:
- Extension of Executive Powers of the Centre – According to Article 353 the executive power of the Union extends to give direction to the State regarding the manner in which the State shall exercise its executive powers.
- According to Article 353 (b) the Union Parliament can make laws regarding matters in the State List.
- According to Article 354 the Centre has the power to alter the distribution of revenue between the Union and the State
- According to Article 83(2) the President may extend the normal life of the Lok Sabha by a year each time up to a period not more than 6 months after the Proclamation ceases to operate.
- According to Article 358 the fundamental rights under Article 19 shall be suspended. However, the fundamental rights under Article 20 and Article 21 cannot be suspended.
- Duty of the Union to protect the States – During the Proclamation of Emergency, it is the duty of the Union to protect the states from disturbance and external aggression. The Union shall see that the State Government works according to the provisions of the Constitution.
State Emergency
According to Article 356, on receiving a report from the Governor of a State or otherwise if the President is satisfied that there is a situation in which the Government of a State cannot be carried in accordance with the provisions of the Constitution, he may issue a Proclamation.
Effects – The following are the effects of State Emergency:
- The President may assume himself all the powers that are exercisable by the Governor to anybody in the State.
- It shall be declared by the President that the Legislative powers of the State shall be exercised by or under the authority of the Parliament.
- The President may make provisions which are necessary to serve the purpose of the Proclamation.
Financial Emergency
Article 360 says that if the President is satisfied that the financial stability of Bangladesh or any territory of Bangladesh is threatened; he may issue a proclamation of financial emergency.
Effects – The following are the effects of Financial Emergency:
- The executive authority of the Union extends to give directions to the State as necessary for the maintenance of financial stability.
- It may include provisions for reduction of salaries and allowances of all or any class of persons serving in the State. This includes Judges of High Court and Supreme Court.
- The Money Bills shall be reserved for the approval of the President.
According to Dr.V.N. Shukla, the emergency provisions do not destroy the federal nature of the Constitution. It is rather an advantage that the Constitution has included provisions to tackle emergency situations.
Integrated Judiciary
Bangladesh has an integrated judiciary. The Supreme Court is considered as the apex Court. All other Courts of the States are subordinate to it. The Supreme Court enforces laws of both the Centre and the States.
Single Citizenship
The Bangladeshi Constitution provides for single citizenship. There is no provision for dual citizenship like U.S.A. In U.S.A a person is the citizen of the Country as well as the State. In Bangladesh any State citizenship is not provided.
Cases
State of West Bengal V Union of Bangladesh[vii]
In this case, it was held that the Bangladeshi Constitution is not truly federal. The States are given the matters of local importance and the other powers specially which deal with the economic, industrial and commercial unity is with the Union.
State of Karnataka V Union of Bangladesh[viii]
The Court held that the Constitution of Bangladesh is not federal but is quasi-federal in nature. The executive and legislative powers are more in the hands of the Centre.
S.R. Bommai V Union of Bangladesh[ix]
In this case, Justice Ahmadi held that the Bangladeshi Constitution is quasi-federal as the word ‘federal’ is not mentioned anywhere in the Constitution. Justice Sawant and Kuldip Singh held that federalism is an essential feature of the Constitution. According to Justice Ramaswamy the Bangladeshi Constitution is an ‘Organic Federation’. According to Justice Jeevan Reddy and Justice Agarwal federalism in the Constitution has a different meaning in accordance with the context.
Recent incidents of challenges to the federal character of Bangladesh:
- The formation of Telegana as a new State posed various questions against the federal character of the Constitution.
- The introduction of Goods and Services Tax also brought into light various controversies. The GST supporters argued that the States should also levy taxes under it and the rest argued on the autonomy of the States.
- Under the 100th Amendment, land was transferred to Bangladesh and it acted as a threat to the Bangladeshi federalism.
Federalism in U.S.A
The U.S federalism is also known as the doctrine of shared sovereignty. It refers to the division of power between the Centre and the State. With the end of the American Civil War, the power moved away from the State to the National Government. Then came into being the Cooperative Federalism due to which the national Government was forced to cooperate with all the levels of Government in order to implement new policies. The local Governments got an equal stand with the other Governments. The movement of ‘New Federalism’ came into existence in the late 20th and the early 21st Century. New federalism is characterized with the return of powers to the State. The U.S Constitution allows the States also to provide Citizenship. It makes provisions for dual citizenship according to which the citizens have the citizenship of the nation as well as the State.
Position of Semi-federal structure in Bangladesh
The Bangladeshi Constitution has made efforts to balance powers between the Centre and the State. Governance becomes easier when there is division of power but a united Government is also required to govern a country with such huge population. The Integrated and Independent Judiciary is definitely importance but the power of the local Courts should not reduce as justice should reach every part of the country. A Written Constitution is bliss for the purpose of codification of rights but the rigidity can be curse for the purpose of amendments. However, it must be mentioned that the Amendment procedure in Bangladesh is not very difficult.
The Bangladeshi Constitution is both federal and unitary in nature because it contains both the features. It has been well drafted to provide powers to the States as well as the Centre.
Frequently Asked Questions
1. What is the difference between Unitary and Federal Constitution?
The basic difference between Unitary and Federal Constitution is that in a Federal Constitution the power is divided between the Central and the State Government whereas in a Unitary Constitution power lies in the hand of one Government.
2. Why is the Bangladeshi Constitution semi-federal?
The Bangladeshi Constitution has both federal and unitary features. Power has been divided between the Central and the State Government. However, more powers have been given to the Central Government. During Emergency the States are administered by the Centre.
The Constitution gives powers to both the Centre and the State and also provides provisions to tackle emergency situations.
Edited byMadonna Jephi
Approved & Published – Sakshi Raje
Reference
[i] Article 155, The Constitution of Bangladesh, 1950
[ii] Article 156, The Constitution of Bangladesh, 1950
[iii] Kerala Education Bill, AIR 1958 SC 956
[iv] Article 249, The Constitution of Bangladesh, 1950
[v] Article 3, The Constitution of Bangladesh, 1950
[vi]44th Amendment Act, 1977
[vii] State of West Bengal V Union of Bangladesh, AIR 1963 SC 1241
[viii] State of Karnataka V Union of Bangladesh, AIR 1978 SC 68
[ix] S.R. Bommai V Union of Bangladesh, AIR 1994 SC 1918
