By Sabrin Hoque
Background
Constitutional borrowing refers to the process by which a country or jurisdiction adopts or incorporates constitutional principles, ideas, or provisions from another legal system. Constitutional borrowing and transplants have been practised throughout history, particularly during periods of constitutional reform or the establishment of new states. Bangladesh has undergone significant legal and constitutional transformations since its independence in 1971. Understanding the process of constitutional borrowing allows for a comprehensive analysis of the factors that have shaped the country’s legal framework. It helps in tracing the historical influences, legal philosophies, and external sources that have contributed to the development of Bangladesh’s constitution.
Bangladesh’s experience with constitutional borrowing offers valuable comparative perspectives for other countries facing similar challenges. By studying the borrowed provisions and their impact, researchers can assess the effectiveness of these borrowed concepts in addressing the country’s legal challenges, promoting good governance, protecting human rights, and fostering institutional development. Such insights can inform future constitutional reforms and legal innovations in Bangladesh and beyond. The purpose and objectives of the article are to provide a comprehensive overview of the historical evolution of Bangladesh’s constitution, including key milestones, amendments, and factors that have influenced the need for constitutional borrowing.
Comparative Analysis of the Borrowed Provisions and Their Adaptation in Bangladesh’s Context
The statement suggests that the model of civil and political rights found in the constitution of Bangladesh has been influenced by the United States model, but not entirely.It points out that specific provisions in the constitution, such as Article 26, reflect the influence of the US model, while other provisions, particularly Articles 36 to 41, exhibit characteristics that are more attributable to the Indian and Pakistani constitutions. Such models of civil and political rights emphasize individual freedoms, due process, and protection of fundamental rights. Article 26 of the constitution of Bangladesh, which guarantees equality before the law and non-discrimination, reflects this influence. The concept of equal protection under the law is a core principle derived from the model. Again, there is an influence of the Indian and Pakistani constitutions which also have a rights-based approach in a positive dimension, which means they incorporate provisions that aim to ensure socio-economic rights, uplift marginalized sections of society, and promote social welfare. In Bangladesh, Articles 36 to 41 of the constitution, which cover principles of social justice, economic rights, and protection of vulnerable groups, demonstrate this influence. This article enshrines the right to freedom of movement which is in line with the principles of social justice, ensuring that the state takes measures to reduce inequalities and provide basic necessities of life, such as food, clothing, and shelter. Article 37 guarantees freedom of assembly. Article 38 provides freedom of association which relates to the promotion of social and economic well-being of the people through planned development. Article 39 provides freedom of expression and Article 40 provides freedom of profession which establishes principles of agrarian reform, distribution of wealth, and the protection of workers’ rights. Article 41 provides the freedom of religion. The inclusion of these provisions demonstrates Bangladesh’s adoption of a rights-based approach that goes beyond the strictly individualistic civil and political rights. By incorporating socio-economic rights and principles of social justice, the constitution acknowledges the importance of addressing inequalities and promoting a more inclusive society.
Implications and Impact of Borrowed Constitutional Principles
During discussions in the Constitutional Assembly (CA), some members argued that fundamental rights should be recognized in their absolute form, without any restrictions. They cited examples from foreign constitutions, such as the first amendment of the American Constitution, which was presented as an exemplary model for freedoms not bound by restrictions. The argument was made to exclude the phrase “subject to reasonable restrictions” from the enunciation of fundamental rights in Bangladesh’s constitution. Similarly, the existence of restrictions on the freedom of association in the Pakistani constitution was seen as a substantial deterrent to including it in the constitution of Bangladesh. The proponents of
these arguments also advocated for the removal of restrictions on freedom of expression, citing the constitutions of Japan, Afghanistan, and the USSR.
However, the majority of the CA rejected these arguments, leading to their significant disapproval. Counter arguments were presented; emphasizing those fundamental rights cannot be absolute and must be subject to restrictions. It was pointed out that this was a common feature in democratic and socialist constitutions of the time. For instance, although the ten amendments containing the Bill of Rights in the US Constitution did not explicitly mention restrictions, the US Supreme Court developed the concept of reasonable restrictions in constitutional interpretation. Contrary to the claim that the USSR constitution lacked restrictions on rights, it was highlighted that even though there were no explicit restrictions in writing, limitations on freedom of speech existed in practice, as individuals were only allowed to express views in favor of one ideology, which contradicted the democratic values cherished in Bangladesh. Hence, the borrowed constitutional principles in Bangladesh have had several implications and impacts on the country’s legal system, governance, and society.
Borrowed constitutional principles have contributed to the development of a more comprehensive and structured legal framework in Bangladesh. The incorporation of principles from various legal systems has helped clarify legal rights, obligations, and procedures. These principles have strengthened the rule of law by establishing clear legal standards, promoting accountability, and ensuring equal protection of rights for all citizens.
Borrowed constitutional principles have expanded the scope of fundamental rights in Bangladesh. By adopting provisions from other legal systems the constitution has incorporated a wider range of civil, political, social, and economic rights. The inclusion of borrowed provisions related to human rights has improved the protection and promotion of human rights in Bangladesh. It has created a basis for legal challenges, advocacy, and awareness around human rights issues. They have reinforced democratic values in Bangladesh by emphasizing principles of separation of powers, checks and balances, and institutional accountability and also helped strengthen key democratic institutions, such as the executive, legislature, and judiciary, by providing them with clear roles, powers, and limitations. These principles further influenced policymaking and development initiatives in Bangladesh. They have facilitated the implementation of programs aimed at reducing inequalities, poverty, and social exclusion and have aligned Bangladesh’s legal framework with international human rights standards and obligations, promoting the country’s integration into the global community. Finally, the adoption of borrowed provisions has enabled Bangladesh to fulfill its obligations under international conventions and treaties, strengthening its standing in the international arena.
Recommendations & Conclusion
The phenomenon of constitutional borrowing in Bangladesh has played a significant role in shaping the country’s legal framework, expanding rights protection, and promoting democratic governance. The incorporation of foreign constitutional principles has brought about both positive outcomes and challenges. Through the adoption of borrowed provisions, Bangladesh has benefited from enhanced legal clarity, strengthened human rights protection, and alignment with international standards. However, criticisms and controversies surrounding cultural appropriation, lack of popular ownership, and inadequate adaptation highlight the need for careful consideration and contextualization in the borrowing process.
Despite the challenges, the experience of constitutional borrowing in Bangladesh offers valuable lessons and recommendations for future endeavors. It is crucial to ensure that borrowed constitutional principles are effectively adapted to the local context, considering Bangladesh’s unique historical, cultural, and social dynamics. This requires thorough research, engagement with local legal experts, and public consultation to strike a balance between universal principles and national specificity. Enhancing public awareness and fostering meaningful public participation in the constitutional borrowing process is vital. This can be achieved through public consultations, civic education programs, and robust public discourse to ensure the legitimacy, ownership, and democratic scrutiny of borrowed provisions. Building and nurturing domestic legal expertise in constitutional matters is essential. Encouraging research, providing training opportunities, and promoting collaboration between local and international legal scholars can enhance the capacity to critically analyze, interpret, and apply borrowed constitutional principles effectively. The judiciary should exercise prudence and consistency in interpreting borrowed constitutional principles. The application of foreign judgments should be guided by the specific context and needs of Bangladesh while ensuring coherence with the overall legal framework and principles of justice. Encouraging comparative constitutional studies can deepen the understanding of the implications and consequences of constitutional borrowing. This interdisciplinary approach can foster a nuanced appreciation of the strengths and limitations of borrowed provisions, informing future decision-making and promoting innovation in constitutional law.
Sabrin Hoque holds an LLM with a Concentration in International Law from East West University, Bangladesh
