If you ask the person in Bangladesh what is Constitution?

Then he or she will point to a Single

Written Document containing the Constitutional Rules. But this simple definition does not
explain to us what Constitutional Rules are. This simple definition is also not applicable for a
country like the United Kingdom where there is no such Single Written Document called
Constitution.
Constitutions can be divided into various types, for example: Written constitution, Unwritten
Constitution, Rigid Constitution, Flexible constitution. Written constitution also called Codified
constitution & Unwritten constitution are also called Uncodified constitution.
The states or countries can also be divided into various types, for example: Federal state,
Unitary state, Constitutional monarchy & Republican state.
Governments of various countries can also be divided into various types, for example:
Presidential form of government & Cabinet form of government.
Constitutional Conventions are part of constitutions but conventions are not legal rules &
therefore conventions cannot be enforced by the course of law. Conventions are customs &
practices followed by the political actors in the political actions.
Like Bangladesh the American constitution is a written constitution & in fact, the American
Constitution is the oldest national written constitution in the world.
Rule of law is a very important principle in constitutional law & the term rule of law has been
used by the Judges & the academicians in their reasonings for a very long period of time. Classic
definition of the Rule of law given by Prof. A.V Dicey in this famous book ‘An Introduction to
The Study of The Law of Constitution’ first published in 1885.
The Legislative Supremacy of Parliament sometimes called The Sovereignty of Parliament,
means in a basic term, that the Parliament can make or unmake any laws whatsoever without any
legal restriction. in that. The Legislative Supremacy of Parliament does not fit well in countries
where there are written constitutions because in countries where there are written constitutions,
the Constitutions are the supreme laws of this country & therefore, the powers of all the
institutions of those countries necessarily limited by the Constitutions. Bangladesh has a written
constitution which is the Supreme Law of the & therefore the Law-making power of the
Parliament of Bangladesh is limited by the Constitution.
Doctrine of Separation of Powers tries to ensure that all the powers of a state are not
concentrated in anything individual or institution. Because if all the powers of the state are
concentrated in any single hand, then there will not be any system of checks & balances, & this
may pave the way to tyranny.
Writ Jurisdiction is a Supervisory Jurisdiction & is not an Appellative Jurisdiction. There are
some recognized traditional grounds for Writ Petition & if you want to agitate your grievances
through writ jurisdiction then you will have to fit your case within one or more of those
traditional grounds. So that your writ petition will be maintainable.
Locus Standi means a person’s right to bring a case before the court. If the person bringing the
case, does not have the right to bring the case, then that may be the end of the matter irrespective
of the rightfulness or wrongfulness of the decision under challenge. In order to have Locus
Standi, the person bringing the case should be the aggrieved person. But there is an exception to
this rule called Public Interest Litigation. If the decision under challenge does not affect a
single individual or a group of few individuals but it affects a greater proportion of the
population; the public, then any person having genuine consciousness & genuine interest to
protect the rights of the public, may bring the case for & on behalf of the public, this is called
Public Interest Litigation. It is mainly used to invoke the writ jurisdiction.
In a Parliamentary Democracy, it is the Parliament or legislature which legislates but in many
cases a body other than the Parliament can make legislation if that body has the necessary
powers to make legislations delegated to them by the Parliament. When a body, other than the
Parliament makes a legislation, that legislation is called delegated legislation.
In Bangladesh, the Administrative Tribunal is not a part of the regular structure of the court.
The Administrative Tribunal has its own separate & distinct constitutional basis in the
Constitution.
Bangladesh is parliamentary democracy & it has a Cabinet form of Govt. The legislature of
Bangladesh is the lawmaking body & is officially called House of the Nation which is a
Unicameral Legislature consisting of 350 members of parliament.
The Judiciary of Bangladesh consists of Higher Judiciary & Subordinate Judiciary. The Higher
Judiciary of Bangladesh or The Supreme Court of Bangladesh consists of two divisions; The
High Court Division & Appellate Division.

Constitution with the foundation of the state, it sets out how a country is governed. Constitution
contains Constitutional Rules which prescribe the compositions and powers of the main organs
of any state. The main organs of a state are:
a. The Legislature: The legislature makes laws, applicable to the people in general
b. The Executive: The executive develop of national policy, maintains foreign relations,
administration and military actions
c. The Judiciary: The judiciary interprets laws and adjudicates legal disputes
The Constitutional Rules also prescribe the functions of these three main organs and also the
limits of their powers. For example: It is the power of the judiciary to decide legal disputes
between parties. Therefore, the Parliament or the legislature cannot decide legal disputes
between parties because the Constitution does not confer any such power upon the legislature.
Similarly, it is the responsibility and function of the executive to act in accordance with the law
made by the Parliament and also the Constitution. The executive cannot act beyond on the
powers conferred to the executive either by the Constitution or by the legislature through Acts of
Parliament. If the executive exceeds its power or does any unlawful act then the judiciary can
decide and declare whether the act or conduct of the executive is lawful or unlawful. Similarly,
the Ministers of the State who are the Chief Executives of a State are accountable to the
legislature through questioning and answers for the actions of the executives. The legislature
makes the law but the laws passed by the legislature must not conflict with the Constitution. If
the legislations passed by the legislature conflicts with the Constitution then the judiciary has
the power to declare such legislations unlawful and unconstitutional.
The Constitutional Rules also prescribe the relationship between the state and its people
including its citizens. For example: The Constitutional Rules prescribed whether the state can
punish its citizens without giving them any fair trial. The Constitutional Rules also prescribe the
property rights of the civilians. For example: The Constitution rules describe whether the state
can take away the properties of its citizens without giving them any just compensation.
Constitutions can mainly be defined from two perspectives, depending upon the sources of the
constitutional rules. The sources of the Constitutional Rules can be:
(i) A single written document called written constitution, or
(ii) In the absence of a written constitution, the Constitutional Rules can be found in various
legal and non-legal sources.

Most of the countries in the world including Bangladesh has written constitution. The written
constitution of Bangladesh contains among many other things, the Constitutional Rules
regarding the president, the method of election, the character of his or her office, the
qualifications, powers and term of the office of the President.
Chapter 2 of part 4 of the Constitution prescribes rules about the Prime Minister and the
Cabinet, the power, the appointment and the tenure of office.
Part 5 of the Constitution contain rules about the legislature, its composition and powers.
Part 6 of the Constitution contains rules about the judiciary, its compositions and powers.
Part 3 of the Constitution defines the fundamental rights and the types of the fundamental
rights. Part 10 of the Constitution describes the procedure for the amendment of the
Constitution.
The lifecycle of a written constitution includes its birth, amendment and death. The birth of a
written constitution may be stimulated by various factors including war, independence,
revolution or peaceful transition of political powers. A body known as Constituent Assembly
draft a new constitution. Then draft text is formally adopted as a country's constitution.
Sometimes the written constitution may require Amendments to meet the current social or
political attitudes. Until now the constitution of Bangladesh has been amended 16th times form
its birth. A written constitution may come to an end for several reasons; some of them may be
illegitimate, some of them may not be so. A ruler may illegitimately siege the government
power and suspend the Constitution. The Constitution may also end in a more legitimate way,
for instance: In 1958 the 4th Republic of France were dissolved following a Referendum.
Laws in written constitution are superior to all other laws of a state. Any law in conflict with
the Constitutional laws are liable to be declared unconstitutional and void.
The task of determining the constitutionality of any law is assigned to the superior court often
prescribed by the Constitution itself, for instance: Article 102(2)(a)(ii) read with Article 7 of
the Constitution of Bangladesh confers such power to the Supreme Court of Bangladesh. Such
superior courts also decide the constitutional powers of the state organs, the disputes between
these organs inter se, and the disputes between the state and its people. It means that in
countries with written Constitution, law organs of a state have unlimited power and must
act within the limit imposed by the constitution. Written Constitution creates the state organs
and also sets limit to the powers of those state organs. But regardless of the length and
complexity of any written constitution, it is impossible that a written constitution will contain all
constitutional answers. Because it is not possible for human beings to foresee all future
contingencies.
Where a written constitution is silent on a particular matter, the lacuna will be filled by statues,
case laws or conventions. For example: In the United States of America, the Supreme Court
acts as a guardian of the Constitution but this role was not allotted to the Supreme Court by the
Constitution itself. The Constitution was silent but the Supreme Court confirmed his own role in
Marbury vs. Madison when it declared that the Supreme Court has the power to declare an act
of the Congress unconstitutional. Later, written Constitutions of other countries expressly
granted such role to their own Supreme Courts.
The United Kingdom does not have a written single document called Constitution but this does
not necessarily follow that the United Kingdom does not have any Constitution at all. Indeed, the
United Kingdom has a constitution which is unwritten Constitution. Unwritten does not mean
that in the UK no constitutional rules can be found in writing. It means that no single written
document represents the document.

Constitution from the perspective of a system of rules rather than a single written
document:
In such system in the absence of a written constitution, the constitutional rules can be found in
various legal and non-legal sources. Statutes and case laws are legal sources whereas
conventions are non-legal sources of constitutional rules, such constitution is called unwritten
or uncodified constitution.
The Constitution of the United Kingdom is unwritten. However, unwritten does not mean that in
the United Kingdom no constitutional rules can be found in writing. It means that no single
written document represents the Constitution. Many of the constitutional rules are found in
various written laws, scattered in various sources of various generations. Magna Carta, 1215,
Bill of Rights, 1689, Parliament Act, 1911, Human Rights Act, 1998, Constitutional
Reforms act 2005, The case of Proclamations, 1610, are some laws in written forms having
constitutional effects. In a country with unwritten Constitution like the United Kingdom, the
Conventions play a much greater role than in countries with written constitutions. For example:
In the United Kingdom legally the Queen can appoint anyone she likes to be Prime Minister. It is
only by convention that she must appoint as Prime Minister, the person who has command over
majority in the House of Commons. The Parliament of the United Kingdom is bicameral;
consists of two chambers:
i. The Upper chamber: The House of Laws is the upper chamber
ii. The Lower chamber: The House of Commons is the lower chamber where the
members of parliament sit and vote

 Therefore, the very democratic basis of the United Kingdom hangs upon convention and
not law.
 Another difference is that, if the absence of a written constitution in the United Kingdom
there must be someone or institution holding the supreme authority and in the United
Kingdom it is the Parliament holding the supreme lawmaking Authority that can make or
unmake any law without any legal restriction.
 Another difference is that in the United Kingdom there is no special procedure for
amending the Constitution. In the United Kingdom the Constitution can be amended by
passing a legislation of constitutional importance by following the ordinary procedure of
law making. The constitutional rules create, define and amend the structure of the
judiciary and other two main organs of the state but in the United Kingdom a new United
Kingdom Supreme Court was created by The Constitutional Reform Act, 2005. No
special procedure was followed to pass The Constitutional Reform Act, 2005.
The definition of Constitution as a system of rules rather than a single written document has
some advantages-
i. The written constitutional text may not be the complete account of how the
constitutional system actually works.
ii. The constitutional text may not be comprehensive, it may omit significant
constitutional rules. For example: We have already seen that the American
Constitution did not provide for the judicial review and this lacuna was filled up by
the Supreme Court of the United States in Marbury vs. Madison.
iii. The text may not match how the constitutional text works in reality. For example:
Article 1 of the Constitution of Cyprus stipulates the state of Cyprus is an
independent and sovereign Republic with a presidential form of govt. The president
being Greek and the Vice-President being Turk, elected by the Greek and Turkish
communities of Cyprus respectively. However, the post of Vice-President has been
vacant since 1963 because of the political division of the island.

Therefore, to fully understand a country's constitution, it is necessary to look beyond the

constitutional text, to the system as a whole. This includes the judgements of these superior
courts regarding the constitutional issues. Some quite significant constitutional rules may also be
set out in ordinary legislation rather than in codified constitution and political practices known as
conventions also need to be governed and understood.
Therefore, to summarize, from the written document perspective constitution can be defined as
“a single written document promulgated by the people at a certain time and adopted by an
authorization procedure under the title ‘constitution’”. On the system of rules perspective
constitution can be defined as “the combination of legal and non-legal rules that provide the
structure of the state, distribute and control the powers of the major institutions and protect with
fundamental rights of the people”
Why do countries need Constitution? What are the main functions of Constitution? These
questions were answered by Thomas Jefferson in the United States Declaration of
Independence (Philadelphia, 4th July, 1776) –
“We hold these truths to be self-evident. That all men are created equal. That they are
endowed by their creator with certain inalienable rights. That among these are life, liberty and
the pursuit of happiness. That to secure these rights, governments are instituted among men,
deriving their just powers from the consent of the governed. That whenever any form of
government becomes destructive of those ends, it shall be the right of the people to alter or
abolish it. and to institute new government, laying foundation upon such principles, and
organizing its powers in such form, as shall seem to them most likely to affect their safety and
happiness.”
Therefore, in countries with written constitutions even though the constitutional texts are drafted
by Constituent Assemblies, they drafted on behalf of the people. The people make the
constitution and in making Constitution, the people do not transfer all the rights to any particular
organization or institution. The people retain the price. Therefore, the institutions or organ can
only exercise those powers which were delegated to them by Constitution and not otherwise. The
very purpose for the creation of the constitution is to protect the inalienable rights and happiness
of the people. The very purpose for the creation of government is to do good to the people and if
any government fails to do good to the people and they harm to the people, then the people have
the right to abolish that government and create new government laying down new foundations.