A History of the Constitution of

Bangladesh: The Founding,

Development, and Way Ahead 1st
Edition Ridwanul Hoque
Visit to download the full and correct content document:
https://ebookmeta.com/product/a-history-of-the-constitution-of-bangladesh-the-foundi
ng-development-and-way-ahead-1st-edition-ridwanul-hoque/
More products digital (pdf, epub, mobi) instant
download maybe you interests ...

Cambridge IGCSE and O Level History Workbook 2C - Depth

Study: the United States, 1919-41 2nd Edition Benjamin
Harrison

https://ebookmeta.com/product/cambridge-igcse-and-o-level-
history-workbook-2c-depth-study-the-united-states-1919-41-2nd-
edition-benjamin-harrison/

America s Founding Documents The Declaration of

Independence the Articles of Confederation the United
States Constitution the Federalist Papers and the Bill
of Rights 1st Edition Alexander Hamilton
https://ebookmeta.com/product/america-s-founding-documents-the-
declaration-of-independence-the-articles-of-confederation-the-
united-states-constitution-the-federalist-papers-and-the-bill-of-
rights-1st-edition-alexander-hamilton/

Alexander Hamilton The Graphic History of an American

Founding Father Jonathan Hennessey

https://ebookmeta.com/product/alexander-hamilton-the-graphic-
history-of-an-american-founding-father-jonathan-hennessey/

Development and Future of Internet of Drones IoD

Insights Trends and Road Ahead 1st Edition Rajalakshmi
Krishnamurthi

https://ebookmeta.com/product/development-and-future-of-internet-
of-drones-iod-insights-trends-and-road-ahead-1st-edition-
rajalakshmi-krishnamurthi/
Methodological Issues in Management Research Advances
Challenges and the Way Ahead 1st Edition Rabi N.
Subudhi

https://ebookmeta.com/product/methodological-issues-in-
management-research-advances-challenges-and-the-way-ahead-1st-
edition-rabi-n-subudhi/

Norse America: The Story of a Founding Myth 1st Edition

Gordon Campbell

https://ebookmeta.com/product/norse-america-the-story-of-a-
founding-myth-1st-edition-gordon-campbell/

The Circle of the Way A Concise History of Zen from the

Buddha to the Modern World Barbara O'Brien

https://ebookmeta.com/product/the-circle-of-the-way-a-concise-
history-of-zen-from-the-buddha-to-the-modern-world-barbara-
obrien/

The Way It Was A History of the early days of the

Margaret River wine industry 1st Edition Peter
Forrestal

https://ebookmeta.com/product/the-way-it-was-a-history-of-the-
early-days-of-the-margaret-river-wine-industry-1st-edition-peter-
forrestal/

The History of American Higher Education Learning and

Culture from the Founding to World War II Roger L.
Geiger

https://ebookmeta.com/product/the-history-of-american-higher-
education-learning-and-culture-from-the-founding-to-world-war-ii-
roger-l-geiger/
A History of the Constitution of
Bangladesh

Marking the 50th anniversary of Bangladesh’s Constitution, this book gauges

its development from 1972 to 2022, focusing on its foundational goals,
performances, and current challenges.
The collection, presenting diverse but issue-specific chapters, shows how the
people, political parties and leaders, and constitutional and legal institutions
interact with each other in advancing, breaking, and remaking their Constitution.
It examines the local context, parliamentary history, and interpretive tools
adopted by the Supreme Court in understanding the Constitution as well as
the future prospect of constitutional politics and practices. The work brings
together legal professionals and constitutional law scholars to encapsulate the
panorama of the country’s constitutional evolution. The authors look back to
the history of constitution-making, to reflect critically on the present in light of
the founding goals, spirits, and aspirations and with a view to ofering a forward-
looking and resilient vision of constitutionalism in Bangladesh.
The book will be of interest to researchers, academics, and policy-makers
working in the areas of comparative constitutional law and politics and South
Asian Studies.

Ridwanul Hoque is Senior Legal Ofcer at Charles Darwin University, Australia.

Rokeya Chowdhury is an independent law and society researcher and is

currently working with a Montreal-based law firm as its Senior Corporate
Mobility Advisor.
Comparative Constitutional Change
Series editors:
Xenophon Contiades
Professor of Public Law, Panteion University, Athens, Greece and Managing
Director, Centre for European Constitutional Law, Athens, Greece.
Thomas Fleiner
Emeritus Professor of Law at the University of Fribourg, Switzerland.
Alkmene Fotiadou
Research Associate at the Centre for European Constitutional Law, Athens, Greece.
Richard Albert
The William Stamps Farish Professor in Law and Professor of Government at
the University of Texas at Austin, USA.

Comparative Constitutional Change has developed into a distinct field of con-

stitutional law. It encompasses the study of constitutions through the way
they change and covers a wide scope of topics and methodologies. Books
in this series include work on developments in the functions of the constitu-
tion, the organization of powers and the protection of rights, as well as research
that focuses on formal amendment rules and the relation between constitu-
ent and constituted power. The series includes comparative approaches along
with books that focus on single jurisdictions, and brings together research
monographs and edited collections which allow the expression of diferent
schools of thought. While the focus is primarily on law, where relevant the
series may also include political science, historical, philosophical and empirical
approaches that explore constitutional change.
Also in the series

Accommodating Diversity in Multilevel Constitutional Orders

Legal Mechanisms of Divergence and Convergence
Maja Sahadzic, Marjan Kos, Jan Kukavica, Julian Scholtes and
Jakob Gasperin Wischhof

Constitutional Law and Politics of Secession

Edited by Antoni Abat i Ninet

A History of the Constitution of Bangladesh

The Founding, Development, and Way Ahead
Edited by Ridwanul Hoque and Rokeya Chowdhury

For more information about this series, please visit: www.routledge.com/Comparative-Constitutional-

Change/book-series/COMPCONST
A History of the Constitution
of Bangladesh
The Founding, Development,
and Way Ahead

Edited by Ridwanul Hoque and

Rokeya Chowdhury
First published 2024
by Routledge
4 Park Square, Milton Park, Abingdon, Oxon OX14 4RN
and by Routledge
605 Third Avenue, New York, NY 10158
Routledge is an imprint of the Taylor & Francis Group, an informa business
© 2024 selection and editorial matter, Ridwanul Hoque and Rokeya
Chowdhury; individual chapters, the contributors
The right of Ridwanul Hoque and Rokeya Chowdhury to be identified
as the authors of the editorial material, and of the authors for their
individual chapters, has been asserted in accordance with sections 77
and 78 of the Copyright, Designs and Patents Act 1988.
All rights reserved. No part of this book may be reprinted or
reproduced or utilised in any form or by any electronic, mechanical,
or other means, now known or hereafter invented, including
photocopying and recording, or in any information storage or retrieval
system, without permission in writing from the publishers.
Trademark notice: Product or corporate names may be trademarks
or registered trademarks, and are used only for identification and
explanation without intent to infringe.
British Library Cataloguing-in-Publication Data
A catalogue record for this book is available from the British Library

ISBN: 978-1-032-23329-1 (hbk)

ISBN: 978-1-032-23330-7 (pbk)
ISBN: 978-1-003-27681-4 (ebk)
DOI: 10.4324/9781003276814

Typeset in Galliard
by Apex CoVantage, LLC
All martyrs of the 1971 Bangladesh Liberation
War and members of the Constituent Assembly
of Bangladesh
Contents

List of contributors x
List of figures xiii
Preface xiv
Acknowledgements xv

1 The fifty years of Bangladesh’s constitutional journey:

reflections and hopes 1
RIDWANUL HOQUE AND ROKEYA CHOWDHURY

PART I
The founding of the Constitution, competing legal
norms, and identity building 27

2 The emergence of Bangladesh’s legal system:

revolutionary legality and a new rule of recognition 29
NAFIZ AHMED

3 The Constitution of Bangladesh and international law 44

KAWSER AHMED

4 Secularism and Islam as the state religion: conflict

or coexistence? 58
MUHAMMAD REZAUR RAHMAN

PART II
Constitutionalism, rule of law, and judicial review 75

5 Rule of law within the constitutional scheme:

a judicial perspective 77
SYED REFAAT AHMED
viii Contents

6 Judicial policy-making by the Supreme Court

of Bangladesh 100
MD ABDUL HALIM

7 Judicial review and the separation of powers: is one

contingent upon the other? 112
CHOWDHURY ISHRAK AHMED SIDDIKY

PART III
Political parties, executive authority,
and parliament under the constitutional scheme 127

8 Constituting limits and accountability of the executive

power in Bangladesh 129
MD LOKMAN HUSSAIN

9 Parliament of Bangladesh: constitutional position and

contributions 145
M JASHIM ALI CHOWDHURY

10 Political parties in the process of constitution-making

and amending: from multi-party to one-party dominant
politics? 161
NIZAM AHMED

PART IV
Social justice, inclusion, and the protection of rights 179

11 Constitutional protection of economic and social human

rights: intention of the constitution-makers and judicial
interpretations 181
MUHAMMAD EKRAMUL HAQUE

12 Locating women within ‘we, the people’ in the

Constitution of Bangladesh 193
PSYMHE WADUD

13 Justice as fairness and the Constitution of Bangladesh 209

TASHMIA SABERA AND NAVEED MUSTAHID RAHMAN
 Contents ix

14 Constitutionalism interrupted or constitutionalism

absent?: the divergence of Constitution and politics
in Bangladesh 224
ALI RIAZ

Index 241
Contributors

Kawser Ahmed is an advocate practising in the Supreme Court of Bangla-

desh. His practice area includes constitutional remedies, dispute settlement,
international law, and human rights. His research interest includes con-
stitutional law, international law and organisations, international dispute
settlement, and human rights. He has recently published an edited volume.
Nafiz Ahmed is a lecturer in law at North South University, Dhaka, Bangla-
desh. He previously worked as a lawyer with a Dhaka-based law firm, Sat-
tar & Co. His research interest lies in public law theory and jurisprudence.
He has published research papers on public law compensation and the basic
structure doctrine.
Nizam Ahmed is a former professor of public administration at the Univer-
sity of Chittagong, Bangladesh. A noted scholar of parliamentary studies
in South Asia, Prof Ahmed has a keen interest in constitutional law and
politics. He has published extensively on local government, party politics,
non-party caretaker government, and parliamentary behaviour.
Syed Refaat Ahmed is a long-serving judge of the Supreme Court of Bangla-
desh. Since his elevation to the bench in April 2003, Justice Ahmed has ad-
judged an extensive range of cases, of which the more significant judgments
are in the fields of constitutional law, the death penalty, criminal appeals, ad-
miralty, arbitration, and company, labour/employment, trademark, customs,
and taxation laws. Justice Ahmed has a number of previous publications.
M Jashim Ali Chowdhury is a lecturer in law at the University of Hull,
United Kingdom. He is the author of a widely read constitutional law text-
book. He has published extensively on Bangladesh’s constitutional issues
with reputed national and international publishers.
Rokeya Chowdhury is an independent law and society researcher and is
currently working with a Montreal-based law firm as its Senior Corporate
Mobility Advisor. While adopting an interdisciplinary approach to legal stud-
ies, her niche area of research is constitutional law, including freedom of ex-
pression, the doctrine of basic structure, and discrimination and the law.
 Contributors xi

Md Abdul Halim is a lawyer, practising in the Supreme Court of Bangladesh.

He has written over sixty law books including in the field of Bangladeshi
constitutional law. A leading public law practitioner, he has a special reputa-
tion for public interest litigations for the protection of the rights of children
and other vulnerable groups.
Muhammad Ekramul Haque is a professor of comparative constitutional law
at the Department of Law, University of Dhaka, Bangladesh. He has pub-
lished extensively on constitutional law, human rights, and Muslim family law
issues in leading law journals and authored and edited books in these fields.
Md Lokman Hussain is an assistant professor at the Department of Law
and Human Rights at the University of Asia Pacific, Dhaka, Bangladesh.
His research interest is in the field of constitutional and political theories,
criminal justice, and environmental governance. His recent work includes a
chapter in Bangladesh and International Law (Routledge, 2021).
Ridwanul Hoque was a professor of law at the University of Dhaka, Bangladesh
until 2022. He is currently in the role of Senior Legal Ofcer at Charles
Darwin University, Australia. A noted scholar of Bangladeshi constitutional
law, Prof Hoque has held visiting research and/or teaching positions at Ed-
inburgh University, Cornell Law School, Melbourne Law School, La Trobe
University, Charles Darwin University, and National Law University, Delhi,
India.
Muhammad Rezaur Rahman teaches law at the University of Asia Pacific,
Dhaka, Bangladesh. He is an afliate researcher at the Centre for the Study
of Ethnicity and Citizenship, the University of Bristol, United Kingdom.
He has a research interest in South Asian secularism and law and religion.
Naveed Mustahid Rahman is currently a G. Ellsworth Huggins Graduate
Fellow at the University of Missouri-Columbia. He previously taught law at
Bangabandhu Sheikh Mujibur Rahman Science and Technology University,
Bangladesh. He has an MA in political science from Central European
University, Austria, and an LLM in international and comparative law from
the University of Dhaka, Bangladesh.
Ali Riaz is Distinguished Professor of Political Science at Illinois State Uni-
versity, USA, a non-resident senior fellow of the Atlantic Council, and the
president of the American Institute of Bangladesh Studies. His research
interests include democratisation, violent extremism, religion and politics,
and South Asian politics. His recent publications include an edited volume
Religion and Politics in South Asia (Routledge, 2021).
Tashmia Sabera is an assistant professor in law at Bangladesh University of
Professionals (BUP). She is currently pursuing an MA in Philosophy at the
University of Missouri—St. Louis. She led a research project on distributive
justice and development with funding from the Centre for Higher Studies
xii Contributors

and Research (CHSR) at BUP, Dhaka, Bangladesh. She contributed a

chapter in Bangladesh and International Law (Routledge, 2021).
Chowdhury Ishrak Ahmed Siddiky is a practising lawyer at the Supreme
Court of Bangladesh and an adjunct associate professor at the University
of Asia Pacific, Dhaka, Bangladesh. He has published extensively on energy
security, cross-border pipelines, international law, and comparative consti-
tutional law. He edited The Rule of Law in Developing Countries: The Case
of Bangladesh (Routledge, 2018) and is also the author of The Geo-Politics of
Energy in South Asia: The Case of Bangladesh (Routledge, 2021).
Psymhe Wadud is a lecturer in law at the University of Dhaka, Bangladesh.
She earlier worked with Bangladesh University of Professionals and the
Bangladesh Institute of Law and International Afairs (BILIA). She also
worked closely with the United Nations Ofce on Drugs and Crime (UN-
ODC) to support the criminal justice systems in South Asia in integrating
gender perspectives into measures against terrorism and violent extremism.
Her research interests focus primarily on constitutional law, international
human rights law, criminal law, and gender justice.
Figures

14.1 Voice and Accountability Score of Bangladesh, 1996–2020 231

14.2 Rule of Law Scores of Bangladesh, 1996–2020 238
Preface

This edited volume is a celebratory project commemorating the 50th year

of the Constitution of Bangladesh in 2022. This book has brought together
both early-career and established scholars, as well as legal professionals to
look back to the history of constitution-making in Bangladesh, to critically
reflect on the present of the country in light of the founding goals, spirits,
and aspirations and ofer a forward-looking and resilient vision of constitu-
tionalism in Bangladesh.
Due to the efects of the COVID-19 pandemic and the ensuing difculty
with which some of our contributors were faced, this volume could not touch
upon some significant and evolving issues, such as the right to liberty and free
speech, the identity of indigenous peoples, rights of sexual minorities, rights of
diferently abled citizens, and environmental rights, to name a few. Nevertheless,
we hope that this volume will add to the learning and practice of constitutional
law in Bangladesh and act as a source of reference for future research in some
of these pertinent areas.
Acknowledgements

The editors are thankful to all the contributors to this volume for their hard
work and dedication in bringing this project to fruition. We would like to
extend our special thanks to the Hon. Justice Syed Refaat Ahmed, Prof Ali
Riaz, and Prof Nizam Ahmed for finding time from their busy schedule. We
are deeply indebted to Dr Jashim Ali Chowdhury (Hull University), Prof
Mohammad Mahbubur Rahman (University of Dhaka), Prof Jaclyn Neo
(National University of Singapore), Dr Moiz Tundawala (Jindal Global Law
School, India), Prof Werner Menski (SOAS, London), Dr Md Saiful Karim
(Queensland University of Technology, Australia), Dr Sharmin Tania and Dr
Mostafa Haider (Curtin Law School, Australia), and Prof Matthew Kramer
(Cambridge University) for extending their help to the editors in reviewing
the contributions, and Raihan Rahman Rafid and Naveed Rahman for their
support with editing. This volume could not have been completed without
the constant support and guidance of the editorial team at Routledge, Alison
Kirk and Anna Gallagher.
Ridwanul Hoque
Rokeya Chowdhury
1 The fifty years of Bangladesh’s
constitutional journey
Reflections and hopes
Ridwanul Hoque and Rokeya Chowdhury

Introduction
Bangladesh emerged as an independent nation-state1 on 26 March 1971 when
it unilaterally declared its independence,2 dismembering from what was ‘un-
divided’ Pakistan at the time. Pakistan imposed an unjust, treacherous war on
Bangladesh, then East Pakistan, in the dead of the night of 25 March 1971 to
resist Bangladesh’s independence. The nine-month-long war of independence,
which saw one of the worst genocides in history,3 was won on 16 Decem-
ber 1971. From early 1972, the process of constitution-making was set forth
based on the Proclamation of Independence promulgated by the Constituent
Assembly of Bangladesh on 10 April 1971. The Proclamation acted as the first
constitution of the country.
The Constitution of the People’s Republic of Bangladesh (hereafter ‘the
Constitution’) was adopted on 4 November 1972 by the Constituent Assembly.
The Constitution entered into force on 16 December 1972. Any constitution
holds the nation’s past, aspires to live the present, and promises to build a
thriving future.4 A constitution is better described as a nation’s autobiography,

1 On Bangladesh’s emergence, see, among others, Subrata R Chowdhury, The Genesis of Bangla-
desh (Asia Publishing House 1972); R Sisson and LE Rose, War and Secession: Pakistan, India,
and the Creation of Bangladesh (University of California Press 1990); Srinath Raghavan, 1971:
A Global History of the Creation of Bangladesh (Harvard University Press 2013); Craig Baxter,
Bangladesh: A New Nation in an Old Setting (Westview Press 1984); AMA Muhith, Bangla-
desh: Emergence of a Nation (University Press Limited 1992); Anisuzzaman, Creativity, Reality
and Identity (International Centre for Bengal Studies 1993). See also David Ludden, ‘The
Politics of Independence in Bangladesh’ (27 August–2 September 2011) 46(35) Economic &
Poll. Weekly 79, 81–85.
2 See the Proclamation of Independence of 10 April 1971, issued by the Constituent Assembly,
with efect from 26 March 1971.
3 On the 1971 genocide, see generally Gary J Bass, The Blood Telegram: Nixon, Kissinger, and a
Forgotten Genocide (Knopf Doubleday Publishing Group 2013) and Archer K Blood, The Cruel
Birth of Bangladesh: The Memoirs of an American Diplomat (University Press Limited 2002).
4 See Ridwanul Hoque, ‘Constitutional Identity in Bangladesh: Complexity and Contestations’
in Ran Hirschl and Yaniv Roznai (eds), Deciphering the Genome of Constitutionalism: Essays on
Constitutional Identity in Honor of Gary Jacobsohn (Cambridge University Press 2023).

DOI: 10.4324/9781003276814-1
2 Ridwanul Hoque and Rokeya Chowdhury

it exists ‘in [the] hearts’ of the people before it exists on paper.5 The constitu-
tion grows and develops along with the nation, although it may contain, or
possibly never abandon, certain fundamental traits. The Constitution has so
far received seventeen Amendments, the first one being in 1973 and the latest
in 2019. Of the seventeen Amendments, six (5th to 10th Amendments) were
enacted by pliable parliaments ingeniously constituted by successive military
or military-backed autocratic regimes (1975–1990).

Aims and contribution of the book

This edited volume is a modest venture of presenting the contemporary his-

tory of the Constitution by reflecting on its past, in terms of both notable
achievements and failures, and attempting to chart its future paths. Consist-
ing of fine contributions from both early-career and established scholars, this
book has been a celebratory project, aiming to honour the Constitution’s 50th
year in 2022. It analyses the Constitution’s past, evaluates its development or
regression since 1972, and visualises the future constitutional trajectory. The
central theme of the book, thus, is to gauge the development of the Constitution
through a historical lens, focusing on its foundational goals, performances,
and challenges.
Given the political instability and governance crises in most countries in the
global south, fifty years of a constitution is a milestone indeed. We believe it is
also a significant time to evaluate and appraise the resilience of the Constitu-
tion and constitutional practices. The paucity of international publications on
Bangladesh-focused constitutional and legal research is a hurdle that scholars
aiming to work in the area often face. With this book, we aim to contribute
significantly to the global conversation, especially from the comparative con-
stitutional law and history perspectives. We collectively also seek to forge a
meaningful dialogue among legal professionals and academic scholars in con-
stitutional law both in Bangladesh and beyond, which will help encapsulate
the whole panorama of the constitutional evolution of Bangladesh. In sum,
the book looks back to the history of constitution-making in Bangladesh, to
critically reflect on our present in view of the founding goals, spirits, and aspira-
tions, with an ultimate view to ofering a forward-looking and resilient vision
of constitutionalism in Bangladesh.
The book’s vision, to put in a slogan, can be drawn as Look Back, Evaluate
the Present, and Forge the Way Forward! With these aims in mind, the editors
asked the contributors to analyse their respective subject matter in the light of
Bangladesh’s constitutional founding principles and the framers’ vision, evaluate
the performance of the nation’s basic document in their concerned subject,

5 Albie Sachs, as quoted in Kamal Hossain, ‘Our Constitution and the Goals of Independence’,
The Daily Star (Dhaka, 18 December 2018) <www.thedailystar.net/opinion/politics/news/
our-constitution-and-the-goals-independence-1675189>.
 The fifty years of Bangladesh’s constitutional journey 3

and then to envisage the future development in that subject. Through this
book, there has been significant cross-learning between early-career and estab-
lished scholars and practitioners.

Making of the Constitution

War of independence
During the British Raj, the territory that forms today’s Bangladesh was within
the province of Bengal.6 Upon the partition of British India in August 1947
into two countries, India and Pakistan, that territory was reorganised as East
Bengal, which joined Pakistan with ‘legitimate expectation for its autonomy
and self-determination as a province’.7 From 14 August 1947 to 25 March
1971, Bangladesh remained a part of Pakistan, first as East Bengal and then as
East Pakistan. Beginning from the start of its formative years, Pakistan fell into
a deep abyss of constitutional crises, and the process of framing a democratic
constitution was prolonged until 23 March 1956.8 Moreover, the West Paki-
stani leaders adopted the policy of discrimination against the eastern wing in
every aspect of state governance, which was but a colonial legacy.9 In this back-
ground, East Bengal/Pakistan raised the demand for its provincial autonomy
during the period and process of constitution-making.
The period from 1947 to 1971 captures the whole span of Bangladesh’s
struggle for liberation. Three major movements formed the bedrock of what
culminated in Bangladesh’s independence and a new constitutional order.
These were: (i) the language movement of 1948–1952; (ii) the 1954 provin-
cial elections based on the 21-point-programme; and (iii) the mass upsurge
in 1965–1969.10 Briefly, these years were replete with movements for Bang-
ladesh’s autonomy or the right to self-determination based on a democratic
constitutional order.

6 Bengal was one of the eleven provinces. See s 46(1) of the Government of India Act 1935.
7 Ridwanul Hoque, ‘The Founding and Making of Bangladesh’s Constitution’ in Kevin YL
Tan and Ridwanul Hoque (eds), Constitutional Foundings in South Asia (Hart Publishing
2021) 91.
8 The crises had indeed lingered at least until the dismemberment of Bangladesh in 1971. Writ-
ing as early as 1972 on Bangladesh’s independence, Chowdhury saw constitutional crises in
Pakistan in four phases: erosion of parliamentary democracy (1947–1954), advent of mili-
tary oligarchy (1954–1958), political experiments of a military dictator (1958–1969), and the
strategy of deception (1969–1971). See Chowdhury, (n 1) 22–75. Since 1947, Pakistan has
experienced four extra-constitutional military regimes, eleven constitutional arrangements, and
three formal Constitutions of 1956, 1962, and 1973. On crises of Pakistani constitutionalism
from the perspective of their impact on Bangladesh, see GW Choudhury, Constitutional Devel-
opment in Pakistan (Longman 1969).
9 On this see Ayesha Jalal, Democracy and Authoritarianism in South Asia: A Comparative and
Historical Perspective (Cambridge University Press 1995), chapter 1 (‘The colonial legacy in
India and Pakistan’).
10 See for details Hoque (n 7) 95–100.
4 Ridwanul Hoque and Rokeya Chowdhury

When the 1956 Constitution of Pakistan denied East Pakistan the full pro-
vincial autonomy that it wanted, the province’s struggle for self-rule contin-
ued. On 8 October 1958, the army chief, General Ayub Khan, took over the
state power and imposed ‘martial law’, abrogated the 1956 Constitution, and
banned all political parties. In 1962, he imposed a new constitution of his
own,11 which East Bengal/Pakistan rejected. Sheikh Mujibur Rahman (not yet
Bangabandhu), the leader of the Awami League (AL), initiated protests and
agitation against unconstitutional moves. When the military ruler withdrew
restrictions on political parties in 1966, Mujib launched the famous six-point
movement for East Pakistan’s full autonomy and a federal democratic consti-
tution for Pakistan.12 Point 1 of the 1966 six-point-programme demanded
that ‘the Constitution should provide for a Federation of Pakistan in its true
sense based on . . . the parliamentary form of government with supremacy of a
Legislature directly elected on the basis of universal adult franchise’ (emphasis
added). Not surprisingly, the Pakistani government viewed the six-point pro-
gramme as a demand for the separation of East Pakistan and threatened stern
actions ‘with the language of weapons’13 against any attempt for dismember-
ment. The Awami League began constitutional mobilisation in support of the
six-point demand. Mujib, along with fifty-four other people, was implicated in
the infamous Agartala Conspiracy Case (1968)14 for conspiring with foreign
enemies (India) for breaking down Pakistan. The commencement of the trial
of the case added fuel to the fire of the ongoing mass movement (1966–1969)
for East Pakistan’s regional autonomy and the end of autocracy. The case
was withdrawn, and Mujib, now Bangabandhu, was released on 22 Febru-
ary 1969.15 Released from jail, Bangabandhu rose to the stature of a national
figure and the leader of the Bangladesh independence movement that was
soon to begin. He continued to demand ‘full autonomy for the Eastern Wing
and representation in the central legislature on the basis of population’,16 and,
when negotiations with the central government failed, submitted a proposal of
amendments to Pakistan’s 1962 Constitution.17

11 On internally imposed constitutions, see Yaniv Roznai, ‘Internally Imposed Constitutions’ in

Richard Albert, Xenophon Contiades, and Alkmene Fotiadou (eds), The Law and Legitimacy
of Imposed Constitutions (Routledge 2019) 58.
12 See M Rashiduzzaman, ‘The Awami League in the Political Development of Pakistan’ (1970)
10(7) Asian Survey 574, 583.
13 S Bhuiyan, P Sands, and NJ Schrijver, ‘An Interview with Kamal Hossain’ in International
Law and Developing Countries (University Press Limited 2014) 17.
14 State vs Sheikh Mujibur Rahman and Others. See Shahida Begum, ‘Agartala Conspiracy Case’
<http://en.banglapedia.org/index.php?title=Agartala_Conspiracy_Case> accessed 12 Sep-
tember 2022.
15 The title of ‘Bangabandhu’, which translates to ‘Friend of Bengal’, was given to him by the
students in a public reception in Dhaka on 23 February 1969 after his release from the prison.
16 Rashiduzzaman (n 12) 585.
17 The amendment proposals were drafted by Kamal Hossain, who would later become the
chairperson of the Constitution Drafting Committee. Another influential person for those
 The fifty years of Bangladesh’s constitutional journey 5

The mass movement (1966–1969) for autonomy led to the fall of President
Ayub Khan, who handed over power to General Yahya Khan, another military
dictator, on 25 March 1969. General Yahya Khan imposed martial law the same
day he assumed power but announced that he would transfer power to elected
representatives and promised to hold general elections on 5 October 1970. Also
promised was a new constitution for Pakistan after the formation of a National
Assembly. The president promulgated the Legal Framework Order (LFO) on
30 March 1970, providing for the rules of elections and the composition of the
National Assembly of Pakistan, allocating 169 seats for East Pakistan.18
The AL began a massive preparation based on its six-point-programme for
the second-ever direct general elections in Pakistan since 1947.19 The general
election was held in December 1970, and the AL won 167 seats out of 313
seats in the National Assembly. Elections were also held for the Provincial
Assembly of East Pakistan, in which the AL won 288 seats out of 310 seats.
Having won a majority of seats in the national parliament, the AL was to form
the government of Pakistan. However, instead of transferring power to the
elected representatives of the winning party, President Yahya Khan followed
his strategy of deception, by postponing the inaugural session of the National
Assembly time and again. When he postponed on 1 March 1971 the scheduled
3 March session, Bangabandhu called for a ‘non-cooperation movement’ from
3–6 March to press the demand for the transfer of power to the Bangladesh
leaders. The Assembly meeting was then rescheduled to 25 March 1971, but
Bangabandhu in his historic ‘7th March Speech’ announced that the transfer
of power to the elected representatives would have to come first. His conclud-
ing part of the ‘7th March Speech’ had an implicit declaration of Bangladesh’s
independence when he sternly announced:

The struggle this time is a struggle for emancipation. The struggle this time
is a struggle for independence.20

Eventually, the Pakistani army commenced an all-out crackdown on the

night of 25 March 1971. Bangabandhu was arrested later that night, but
he managed to transmit the Declaration of Independence in the early
hours of 26 March 1971. Then followed the bloody and most brutal war
of Bangladesh’s independence that ended on 16 December 1971 when the
Pakistani forces surrendered at Dhaka.

draft constitutional proposals was Rehman Sobhan. See Muchkund Dubey, ‘Memoirs of
Three Eminent South Asians: Central Contributions’ (2018) 74(2) India Quarterly 234,
236.
18 Of these 169 seats, 162 were direct seats and 7 were reserved seats for women. See the Legal
Framework Order 1970, schedule 1.
19 First general elections were held in 1962 under the military ruler Ayub Khan.
20 See the 6th Schedule of the Constitution, inserted in 2015 by the 15th Amendment.
6 Ridwanul Hoque and Rokeya Chowdhury

Constituent Assembly and the drafting of the Constitution

All elected representatives who won seats in the 1970 elections of the Provincial
and National Assemblies of Pakistan formed themselves into the Constituent
Assembly of Bangladesh and promulgated the Proclamation of Independence
on 10 April 1971 (efective 26 March 1971). The preamble of the Proclama-
tion of Independence (the Proclamation) stated as follows:

We the elected representatives of the people of Bangladesh, as hon-

our-bound by the mandate given to us by the people of Bangladesh
whose will is supreme[,] duly constituted ourselves into a Constituent As-
sembly, and having held mutual consultations, and in order to ensure
for the people of Bangladesh equality, human dignity and social jus-
tice, declare and constitute Bangladesh to be sovereign Peoples’ Republic.
(emphasis added)21

Thus, the Proclamation constituted the new State of Bangladesh, formed a

Constituent Assembly, embraced the concept of popular sovereignty, and laid
down the founding values of equality, human dignity and social justice. It also
legalised Bangladesh’s unilateral declaration of independence that was first
made by Bangabandhu on 26 March 1971.
The Proclamation was, in efect, Bangladesh’s first and interim constitution,22
making provisional arrangements for a ‘provisional government’ (the govern-
ment-in-exile) that was formed at the same time on 10 April 1971.23 The
Proclamation adopted a presidential form of government and declared Bang-
abandhu (then in the Pakistani prison) as president of Bangladesh. It author-
ised the president to ‘exercise all the Executive and Legislative powers of the
Republic’ until ‘a Constitution [was] framed’, appoint a prime minister and
other ministers, summon and adjourn the Constituent Assembly, and ‘do all
other things that may be necessary to give to the people of Bangladesh an
orderly and just Government’ (emphasis added).24
The next constituent instrument was the Provisional Constitution of
Bangladesh Order 1972 (PCO), promulgated under the Proclamation on
11 January 1972 by Bangabandhu in his capacity as president immediately after
his return on 10 January from captivity in Pakistan.25 The PCO transformed the

21 For the Proclamation of Independence, see the 7th Schedule of the Constitution.
22 Emraan Azad, ‘The Proclamation of Independence: The First Constitution of Bangladesh’,
The Daily Star (Dhaka, 10 April 2018) at p. 12. See also M Ekramul Haque, ‘Formation of
the Constitution and the Legal System in Bangladesh: From 1971 to 1972: A Critical Legal
Analysis’ (2016) 27(1) Dhaka Univ Law J 41.
23 The Proclamation, however, was made public on 17 April 1971 when the government took
its oath thereunder.
24 The Proclamation of Independence (n 21).
25 Having been a constituent instrument, the PCO could perhaps more legitimately be enacted
by the Constituent Assembly rather than by the president in his ordinary law-making power.
 The fifty years of Bangladesh’s constitutional journey 7

nature of government into a parliamentary form and made provisions on the ju-
dicial power of the state, which was left unaddressed by the Proclamation.26 The
PCO used for the first time the constitutional name of the country as ‘the People’s
Republic of Bangladesh’.
The ‘Constituent Assembly of Bangladesh’27 (CAB) was called into a two-
day first session on 10 April 1972. It was a 403-member Assembly with eligible
members that were available at the time.28 On its first day, the CAB elected its
speaker and deputy speaker and adopted the Rules of Procedure. On the sec-
ond day, it formed a 34-member Constitution Drafting Committee (CDC),
with Dr Kamal Hossain, then law minister, as chairman.29 The CDC finalised
the draft and approved the Draft Constitution Bill on 11 October 1972 for
laying before the Assembly. The Constitution Bill along with the report of the
CDC was introduced in the CAB on 12 October 1972 in its second session
that ended on 4 November 1972.30 After extensive deliberations31 and debates
(mostly on socialism, secularism, and the unenforceability of social rights), the
Constitution Bill was passed by the CAB on 4 November 1972. The Constitu-
tion came into efect on 16 December 1972.32

Bangladesh’s constitutional journey

Bangladesh’s past constitutional history during the Pakistan era (1947–1971)
was a history of social injustice and the absence of constitutional rule. The
birth of Bangladesh in 1971, therefore, arguably conveys its people’s deep
commitment to constitutionalism and democracy. Ironically, however, except
for brief interludes of constitutional governments, Bangladesh for much of its

26 By default, the then Dacca High Court continued as the country’s Supreme Court from 26
March 1971.
27 This ofcial title of the Assembly was adopted by the Bangladesh Constituent Assembly Order
1972 (BCAO) (P.O. No. 22 of 1972, 23 March 1972), art. 2(a).
28 See further AF Huq, ‘Constitution-Making in Bangladesh’ (1973) 46(1) Pacific Afairs 59,
60. Earlier, article 4 of the PCO 1972 defined the Constituent Assembly as being composed
of the elected representatives unless ‘disqualified by or under any law’. The BCAO 1972 (n
27) provided for the structure, powers, and functions of the CAB. See also the Bangladesh
Constituent Assembly Members (Cessation of Membership) Order 1972 (P.O. No. 23 of
1972, 23 March 1972) that provided for the cessation of membership upon a member’s res-
ignation from, or expulsion by, his political party.
29 There was no ‘opposition party’ in the Assembly, but one opposition member, Mr Suranjit
Sengupta, who was opted as a member of the CDC. Ms Begum Razia Bano, who was elected
from the women’s seats to the National Assembly was the only female member on the commit-
tee. The only indigenous community member of the Assembly, Mr Larma, was not co-opted
in the drafting committee.
30 See Report of the Constitution Drafting Committee, Bangladesh Gazette, Extraordinary,
Thursday, 12 October 1972, Dhaka, at 2615 f.
31 The dates are as follows: 12–14, 19–21, 23–27, and 30–31 October and 1–4 November.
32 Upon commencement of the Constitution, the Constituent Assembly went into automatic
dissolution. See the 4th Schedule of the Constitution, paragraph 1.
8 Ridwanul Hoque and Rokeya Chowdhury

history has experienced authoritarian rule.33 Throughout the past years, gov-
ernmental unaccountability and impunity have often prevailed over the norms
and ethos of constitutionalism.
Bangladesh’s constitutional history can be seen through the lens of five peri-
odic phases: the first spans between 1972–1973 (constitutional politics build-
ing); the second between 1973–1975 (democratic decline to constitutional
dismemberment); the third runs from 1975–1990 (extraconstitutional and
autocratic regime); the fourth from 1991–2013 (democratic restoration and
unstable constitutionalism, with the exception of military-backed 2007–2008
caretaker regime); and the fifth from 2014–present day (extreme democratic
decline and constitutional autocracy).
At its founding moment, Bangladesh adopted a four-pronged constitu-
tional identity, based on the principles of (Bangali) nationalism, secularism,
democracy, and socialism. However, the hegemonic Bengali national identity
was flawed and exclusionary.34 During the time of constitution-making, the
demand for a plurinational identity was suppressed by refusing to constitu-
tionally recognise indigenous peoples.35 The four national or constitutional
identity principles have since remained contested.36
Bangladesh began with a parliamentary form of democracy, first through
the PCO of 1972 and then through the Constitution. The first parliamentary
government under the Constitution was formed after the first general elections
in March 1973. Ironically, the parliamentary democracy drastically backpaddled
the following year when an emergency was imposed37 and faced a tragic demise
in January 1975 when an authoritarian, one-party government was established
through the controversial 4th Amendment.38 Probably the landslide victory
of the AL in the first general elections was one of the reasons for the party’s
journey to a one-party dictatorship.39 The 4th Amendment marked a constitu-
tional dismemberment, by destroying many of the founding values of the na-
tion including, most notably, its democratic identity. The Amendment turned

33 Ridwanul Hoque, ‘Constitutionalism and the Judiciary in Bangladesh’ in Sunil Khilnani,

Vikram Raghavan, and Arun K Thiruvengadam (eds), Comparative Constitutionalism in
South Asia (Oxford University Press 2012) 303.
34 See Hoque, ‘Constitutional Identity in Bangladesh’ (n 4).
35 See Ridwanul Hoque, ‘Inclusive Constitutionalism and the Indigenous People of the Chit-
tagong Hill Tracts in Bangladesh’ in (2016) Indian Yearbook of Comparative Law (Oxford
University Press 2017) 217.
36 See Hoque, ‘Constitutional Identity in Bangladesh’ (n 4).
37 Earlier in 1973, the Constitution (Second Amendment) Act 1973 inserted article 141A to
provide a provision on the state of emergency. The 2nd Amendment also amended article 33
to allow the preventive detention of citizens on state security grounds.
38 The Constitution (Fourth Amendment) Act 1975 (25 January 1975). See further JSA Choud-
hury, Bangladesh: Failure of a Parliamentary Government 1973–1975 (Jamshed Foundation
2005).
39 See T Maniruzzaman, ‘Bangladesh: The Unfinished Revolution?’ (1975) 34(4) J of Asian
Studies 891.
 The fifty years of Bangladesh’s constitutional journey 9

the judiciary into a subservient body – judges being removable by the wish of
the president – and suspended many civil and political rights. A nation based
on multi-party democracy metamorphosed into a one-party constitutional dic-
tatorship overnight.40
The constitutional U-turn in 1975 was arguably the beginning, to borrow
from Ghai, of ‘paternalism’ and the ‘absence of constitutionalism’ in the gov-
ernance of the Bangladeshi state.41 Following that fall, it was not too long be-
fore the military intervened. The founding leader of the nation, Bangabandhu
Sheikh Mujibur Rahman, was brutally assassinated along with all family mem-
bers but two daughters on 15 August 1975. The country was put under ‘mar-
tial law’ on 19 August 1975 and the Constitution was suspended.
The next sixteen years (1975–90) would be a history of extra-constitutional
military governments or military-backed civil authoritarian governments. Dur-
ing this period, two military rulers led the two martial law periods, General
Ziaur Rahman and General Hossain M. Ershad. The two generals established
two political parties, the Bangladesh Nationalist Party (BNP) and the Jatiya
Party (JP), respectively. In the late 1980s, there was a wave of popular mobili-
sations for the restoration of democracy and constitutional politics. The second
military ruler since independence, General Ershad resigned as the president on
6 December 1990. Based on an all-party consensus, Ershad appointed Chief
Justice Shahabuddin Ahmed as vice-president. Vice President Justice Ahmed
took the ofce of president after Ershad resigned. Justice Ahmed was the sit-
ting chief justice of the country who agreed to lead the neutral election-time
government (December 1990 to March 1991) on the condition that he would
be allowed to return to the judiciary after the elections.42
In February 1991, general elections were held under the caretaker govern-
ment of Shahabuddin Ahmed, and the country reembraced democracy. The
BNP won the elections and formed the government, while the AL became
the opposition party. The democratic transition inspired hope that democracy
would be consolidated, but that hope soon appeared to be hollow. At the end
of the term of the 1991 BNP government, a major political crisis concerning
the mode of the next general elections was looming. The opposition AL de-
manded that the Constitution be amended to adopt the system of a neutral,
non-party caretaker government (NPCTG) to ensure free and fair elections

40 See Dilara Choudhury, Constitutional Development in Bangladesh: Stresses and Strains (Uni-
versity Press Limited 1995).
41 Yash Ghai, ‘The Theory of the State in the Third World and the Problematics of Constitu-
tionalism’ in D Greenberg et al. (eds), Constitutionalism and Democracy: Transitions in the
Contemporary World (Oxford University Press 1993) 186, 187.
42 See Ridwanul Hoque, Judicial Activism in Bangladesh: A Golden Mean Approach (Cambridge
Scholars Publishing 2011) 95–96. See further Ali Riaz, Bangladesh: A Political History Since
Independence (IB Tauris 2016); and Taj Hashmi, Fifty Years of Bangladesh, 1971–2021: Crises
of Culture, Development, Governance, and Identity (Palgrave Macmillan 2022).
10 Ridwanul Hoque and Rokeya Chowdhury

for the transfer of power.43 The ruling party BNP refuted the demand and
proceeded to hold elections under the incumbent government. The AL boy-
cotted the elections held in February 1996. The one-party parliament, thus
constituted, passed the 13th Amendment to constitutionalise the NPCTG sys-
tem and went into dissolution.44 While the NPCTG was the result of a strong
constitutional mobilisation by the AL and its allies and the constitutional de-
sign innovation resolved the months-long crisis, the parties did not have a
chance to deliberate on the details of the design.
The principal function of the NPCTG was to ensure ‘fair and free’ national
elections.45 The NPCTG was to be in power only for ninety days from the
dissolution of one parliament to the formation of the next parliament. The
general elections of the 7th parliament were held in June 1996 under the aus-
pices of the newly installed NPCTG, in which the AL won. Elections are due
every five years. The next general elections for the 8th parliament under the
NPCTG administration were held in 2001, in which the BNP won. A couple
of years before the scheduled 2006 elections, the ruling party BNP adulterated
the NPCTG system by increasing the retiring age of Supreme Court justices to
sixty-seven,46 with the ulterior motive of having the then chief justice (Justice
KM Hasan) to lead the NPCTG after his retirement. According to the now-
repealed article 58C of the Constitution, the most recently retired chief justice
was to be the first choice as head of the NPCTG.
The opposition AL announced that it would not participate in the elec-
tions under Justice KM Hasan’s leadership.47 In October 2006, the ruling and
the opposition parties failed to reach an agreement on the formation of the
soon-to-be incumbent caretaker government. The then president (who was a
nominee of the BNP) took the ofce of chief advisor and formed a caretaker
government. The AL repudiated the NPCTG established and commenced
violent protests and demonstrations.48 As a result, another irreconcilable po-
litical crisis emerged. At this juncture, the military ingeniously intervened by
forcing the president to resign as the chief advisor and form a new caretaker

43 M Rashiduzzaman, ‘Political Unrest and Democracy in Bangladesh’ (1997) 37(3) Asian Sur-
vey 254.
44 The Constitution (Thirteenth Amendment) Act 1996.
45 See, for details, SZ Khan, The Politics and Law of Democratic Transition: Caretaker Govern-
ment in Bangladesh (Routledge 2017); N Ahmed, Non-Party Caretaker Government in Bang-
ladesh: Experience and Prospect (University Press Limited 2004); and H Zafarullah and MY
Akhter, ‘Non-Political Caretaker Administrations and Democratic Elections in Bangladesh:
An Assessment’ (2000) 35(3) Govt and Opposition 345.
46 Via the Constitution (Fourteenth Amendment) Act 2004.
47 Justice Hasan was reportedly an ofce-bearer with the BNP before his elevation to the High
Court Division as a judge. Also, he was the brother-in-law of one of the alleged killers of
Bangabandhu.
48 Ridwanul Hoque, ‘The Judicialization of Politics in Bangladesh: Legitimacy, and Conse-
quences’ in Mark Tushnet and Madhav Khosla (eds), Unstable Constitutionalism: Law and
Politics in South Asia (Cambridge University Press 2015) 261.
 The fifty years of Bangladesh’s constitutional journey 11

government with advisors recommended by them. The president was also

compelled to declare a state of emergency in January 2007. The elections that
were due in December 2006 were postponed. The 2007 NPCTG remained
in power for two years instead of their constitutional term of three months.
This was an extra-constitutional but probably the only desired solution in the
context of the intractable constitutional deadlock that crippled the nation. The
next general elections were held in December 2008 under the military-backed
NPCTG, in which the AL won.49
The NPCTG system, thus, revealed some generic defects. The AL did not
announce its position regarding the NPCTG in its 2008 election manifesto.
Nor did the 2009 AL government publicly show any apathy against the sys-
tem. It, however, probably had the plan to abolish the NPCTG.
In May 2010, by a 4:3 ‘short order’, the Supreme Court’s Appellate
Division in Abdul Mannan Khan v Bangladesh50 declared the 13th Amend-
ment of the Constitution unconstitutional but controversially held that
the next two general elections could be held under the NPCTG system.51
The AL government took advantage of the short order in the 13th Amend-
ment Case and rushed towards abolishing the NPCTG system via the 15th
Amendment of 2011. This Amendment triggered another constitutional
crisis. Now the opposition BNP and its allies declared that they would not
participate in the ensuing general elections unless the NPCTG system was
reintroduced.
The ruling party continued to assert that every election would be held
under the incumbent government, as in other ‘developed’ democracies.
The next general elections for the 10th parliament, held in January 2014,
were virtually one-party elections. The main opposition BNP and its allies
boycotted the elections. Unsurprisingly, the ruling party had won it all,
while 153 out of 300 general parliamentary seats were elected unopposed.
Thus, there was no opposition in the 10th parliament formed after the 2014
elections.52
The next general elections, held on 30 December 2018, were contested by
major political parties, but the fairness and democratic credibility of the elec-
tions remain widely questioned. The ruling AL and its ally JP had won 293 out
of 300 seats. The major opposition BNP, which had won competitive elections
twice before (in 1991 and 2001), and its ally secured only seven seats.53 There
are reports that the 11th parliamentary elections were anything but free, fair,

49 See Hoque, ibid.

50 (2012) 64 DLR (AD) 1.
51 See further Chapters 6 and 10 in this volume. Abdul Mannan Khan was an appeal from a
2004 decision by the HCD in M Saleem Ullah v Bangladesh (2005) 57 DLR (HCD) 171,
which endorsed the NPCTG as constitutional.
52 See Hoque, ‘Judicialization of Politics’ (n 48).
53 See Hoque, ‘The Founding and Making of Bangladesh’s Constitution’ (n 7).
12 Ridwanul Hoque and Rokeya Chowdhury

and competitive.54 Like the 10th parliament, the current 11th parliament does
not have any opposition party in any real sense of the term.
These recent developments portray a strong sign of Bangladesh’s entry into
a hybrid regime of electoral autocracy.

Constitutional achievements and innovations

Democracy and caretaker government system

One notable achievement of the Constitution is its commitment to repre-

sentative democracy, although whether democracy has been consolidated
or not is a diferent question. Following the country’s re-embracement of
democracy in 1991, the competing political parties agreed to restore the
parliamentary form of democracy through the 12th Amendment to the Con-
stitution.55 This was a transition from the presidentialism of the 1975–1990
era to parliamentarianism.
In furtherance of democracy and with a view to ensuring free and fair elec-
tions as the means of transfer of power from one government to another, the
nation adopted the NPCTG system as a constitutional design innovation to
check incumbency advantage.56 If history is any record, the successive incum-
bent governments have always manipulated constitutional tools and admin-
istrative means to influence and corrupt the electoral system in Bangladesh.
Given the confrontational politics in Bangladesh, political scientists and con-
stitutionalists have argued that free, fair, and competitive elections are almost
impossible under any incumbent government. The most credible general elec-
tions in Bangladesh were those held in 1991, 1996, 2001, and 2008. All these
elections were held under the special caretaker government of 1991 or the
NPCTG established by the 13th Amendment. The role and significance of a
constitutional system of the NPCTG during elections can be best measured
by reference to the consequences of the abolition of the system in 2011. Its
abolition has ushered in an electoral system enslaved by the incumbent gov-
ernment, and the country has entered the age of electoral autocracy.
Beyond achievements coming through constitutional politics, there have
been two landmark constitutional achievements, spearheaded by the judiciary:
the concept of public interest litigation (PIL) and the idea of ‘unconstitutional

54 See, among others, Sumit Ganguly, ‘The World Should Be Watching Bangladesh’s Elec-
tion Debacle’, Foreign Policy (7 January 2019) <https://foreignpolicy.com/2019/01/07/
the-world-should-be-watching-bangladeshs-election-debacle-sheikh-hasina/>.
55 See further Ahmed, Chapter 10 in this volume. See also MA Hakim, The Changing Forms
of Government in Bangladesh: The Transition to Parliamentary System in 1991, in Perspective
(Bangladesh Institute of Parliamentary Studies 2000).
56 On incumbency advantage, see Adam Abede, ‘Taming the Incumbency Advantage: Innova-
tive Constitutional Designs from the “South”’ International IDEA Discussion Paper 2/2021
(International Institute for Democracy and Electoral Assistance 2021).
 The fifty years of Bangladesh’s constitutional journey 13

constitutional amendment’ (UCA), which is better known as the basic struc-

ture doctrine (BSD). These two developments, however, have their downsides.
Being the product of judicial decisions, they are quite susceptible to misuse
both by the judiciary and the political branches.57 This book does not cover
these oft-analysed concepts in individual chapters, but they have been points
of reference in several chapters.

Public Interest Litigation (PIL)58

The concept of PIL was first adopted by the Appellate Division of the Su-
preme Court (SCAD) in Dr Mohiuddin Farooque v Bangladesh,59 in which
case an environmental organisation, BELA, was granted standing to challenge
a flood action project (FAP 21) of the government. Article 102(1) of the
Constitution provides that the High Court Division (HCD) of the Supreme
Court can issue orders and writs in a judicial review petition made by ‘any
person aggrieved’. When BELA challenged FAP 21 on constitutional grounds,
the HCD rejected the petition because the petitioner was not a ‘person ag-
grieved’. On appeal, the SCAD held that any person genuinely espousing the
interest of the public can bring a judicial review action. The court reasoned
that interpreting the scope of the phrase ‘any person aggrieved’ otherwise
would be against the intention of the framers or the purposes of the Constitu-
tion including social justice and the rule of law.
Following the hard-earned entrenchment of public interest litigation into
the country’s legal system in 1996,60 PIL has been increasingly used arguably
as a tool of constitutionalism. The PIL has delivered normative social impacts,
in addition to holding itself out as a mechanism for executive accountability.
It also has transformed the authority of the Supreme Court as the guardian of
the Constitution.
Initially, PIL’s focus was on collective rights and environmental justice.
PIL has, subsequently, extended its folder to cover a wide array of issues such
as child health, protection of the homeless (slum-dwellers),61 preservation of
public parks or rivers, access to emergency medical support, and public health

57 See, e.g., Manoj Mate, ‘Two Paths to Judicial Power: The Basic Structure Doctrine and Public
Interest Litigation in Comparative Perspective’ (2010) 12 San Diego Int’l LJ 175.
58 On PIL generally, see N Ahmed, Public Interest Litigation in Bangladesh: Constitutional Issues
and Remedies (Bangladesh Legal Aid and Services Trust 1999); R Hoque, ‘Taking Justice
Seriously: Judicial Public Interest and Constitutional Activism in Bangladesh’ (2006) 15(4)
Contemporary South Asia 399.
59 (1997) 17 BLD (AD) 1.
60 Unlike in India, the PIL movement in Bangladesh had not been steered by the judges. Rather,
the activist lawyers needed to work hard to make the judiciary break away from the colonial
jurisprudential inhibitions.
61 On this, now see SMA Naznin, Forced Slum Evictions in Bangladesh: The Role of Structural In-
junction as an Appropriate Judicial Remedy (Unpublished PhD Thesis, Macquarie University
2019).
14 Ridwanul Hoque and Rokeya Chowdhury

and hygiene. Yet, these areas fall under the rubric of ‘social justice’, or the
common causes of the public in the sense of a social right.62 Environmental
justice seems to have drawn the Court’s most intensive attention in PIL chal-
lenges. In a long series of cases, the Court has proactively indulged in exercises
directed towards the protection of the environment, mostly by issuing innova-
tive remedies such as by requiring the concerned government agency to make
rolling reports of progress or by binding the government with specific positive
obligations or by framing ‘obligatory’ guidelines. For example, a court action
resulted in a string of government actions improving the conditions of four
exceedingly polluted rivers surrounding Dhaka,63 with the court more recently
recognising the legal personhood of rivers.64
Beginning from the early to mid-2000s, PIL cases of a mixed genre, com-
bining civic/political rights claims and constitutional principles, began to be
litigated. The Court acted in PIL cases, for example, to protect judicial in-
dependence, promote electoral political culture, ensure the participation of
the people in democracy, stop police brutalities, and combat sexual harass-
ment at workplaces and educational institutions. It also acted proactively to
check corruption by state agencies. In a high-profile PIL, for example, the
Court invalidated the governmental permission granted to a foreign private
company to construct a container terminal at the Chittagong Port on the
ground of non-transparency in public decision-making.65 In other notable
actions, the Court invalidated a local government law for breaching the prin-
ciple of representative governance, directed the government to establish spe-
cial courts in the Chittagong Hill Tracts region for the protection of women
and children,66 and struck down a provision of the mandatory death penalty
for a specific form of aggravated murder.67 Judicial activism in such cases is
seemingly motivated by the court’s sense of duty to uphold constitutional
supremacy.
There have been concerns that PIL has been abused by non-genuine public
interest litigants for personal or political gains. There is a long list of instances
where PILs were filed for purely political reasons or to litigate a political issue

62 In its formative years, PIL focused on the goal of social justice via the means of enforcing
statutory obligations of the government or constitutional rights of citizens such as the right
to life. See, for example, Rabia Bhuiyan, MP v Secretary, Ministry of LGRD (2007) 59 DLR
(AD) 176 (establishing the right to safe drinking water).
63 Human Rights and Peace for Bangladesh v Bangladesh, WP No. 3503 of 2009, High Court
Division, judgment 25 June 2009 (directing the authorities to declare those rivers as ecologi-
cally critical areas and to form a river conservation commission).
64 Nishat Jute Mills Limited v Human Rights and Peace for Bangladesh, CPLA 3039 of 2019,
Appellate Division, judgment 17 February 2020.
65 Engineer Mahmud-ul Islam v Bangladesh (2003) 23 BLD (HCD) 80.
66 See BLAST v Secretary, Ministry of Law, Justice and Parliamentary Afairs (2009) 61 DLR
(HCD) 109.
67 See BLAST v Bangladesh (2015) 1 SCOB (AD) 1 (endorsing BLAST v Bangladesh (2010) 30
BLD (HCD) 194).
 The fifty years of Bangladesh’s constitutional journey 15

in the garb of a legal matter. A case filed by a politician in ‘the public interest’,
for example, ended up in the de-registration of the Jamaat-e-Islami Bangla-
desh party.68 The Court dismissed many abusive PILs, while in other cases it
was inclined to intervene in or meddle with politics. In the 13th Amendment
Case, for example, the SCAD struck down the NPCTG system as illegal and
undemocratic, a decision which instead of solving the problem turned out to be
a problem itself. Also, the Court in PIL cases has been increasingly undertak-
ing law-making or policy-making exercises. In BNWLA v Bangladesh (2009),69
for example, the Court issued detailed guidelines ‘in the nature of law’ in the
context of absence of laws efectively to prevent and punish sexual harassment
of women. While the intervention for the protection of women from sexual
harassment is plausible, it was not quite right for the Court to engage in such a
direct legislative exercise.70 This has been a major shift in the Court’s jurispru-
dence in the post-emergency (2007–2008) period marked by a judicial attempt
to regain public confidence and rebuild its image.
With the decline in democratic practices, there has been a noticeable de-
cline in legal and judicial activism via PIL. However, an important develop-
ment in this field deserves cautious acclamation, which is the Court’s recent
willingness to award compensation under its judicial review power.71 Under
article 102(1) of the Constitution, the HCD in a judicial review can grant
any appropriate remedy to enforce constitutional rights. Compensation for
the violation of fundamental rights by state agencies was first awarded by the
HCD in Bilkis Akhter Hossain v Bangladesh (1997).72 The Bilkis Akhter rea-
soning was later afrmed by the SCAD, which, however, overruled the com-
pensation decision.73 The SCAD held that compensation under article 102
could be awarded in case of any ‘gross’ violation of constitutional rights only.
Despite this decision, however, the HCD on several occasions entertained

68 See Maulana Syed Rezaul Haque Chadpuri v Bangladesh Jamaat-e-Islami (2014) 66 DLR
(HCD) 14.
69 (2009) BLD (HCD) 415.
70 The style and language of the guidelines were somewhat identical to statutory instruments.
On this tendency of judicial overreach, see MR Islam, ‘Dissecting Quasi-Legislative Judicial
Directives of the Supreme Court of Bangladesh’ in Po Jen Yap (ed), Constitutional Remedies
in Asia (Routledge 2019) 138; ‘Judges as Legislators: Benevolent Exercise of Powers by the
Higher Judiciary in Bangladesh with Not So Benevolent Consequences’ (2016) 16(2) Oxford
U Commonwealth LJ 219.
71 See, for details, Ridwanul Hoque, ‘Public Law Compensation in Bangladesh: Looking Within
and Beyond’ (2010) 1(2) J of L and Development 1; and Taqbir Huda, ‘Fundamental Rights
in Search of Constitutional Remedies: The Emergence of Public Law Compensation in Bang-
ladesh’ (2021) 21(2) Australian J of Asian L 27.
72 (1997) 17 BLD (HCD) 395. In a 2003 PIL decision in BLAST v Bangladesh (2003) 55 DLR
(HCD) 363, the Court for the first time recognised its authority to award public law compen-
sation for violation of human rights but did not grant compensation.
73 Bangladesh v Nurul Amin (2015) 67 DLR (AD) 352.
16 Ridwanul Hoque and Rokeya Chowdhury

ordinary tort claims in the guise of PIL, awarding compensation in what are
civil wrongs and not cases of gross violation of fundamental rights.74
In the 2015 case of CCB Foundation v Bangladesh,75 for example, the HCD
awarded monetary compensation of BDT 2 million in favour of the family of
a 4-year-old boy who met a tragic death in December 2014 in Dhaka when
he fell into an abandoned deep tube–well shaft belonging to a government
department.76 In this and other cases, the Court did not explain how a gross
violation of human rights occurred due to negligence or inefciency of gov-
ernment agencies. Notwithstanding jurisprudential shortcomings, therefore,
the judicial practice of enacting compensatory justice in PILs has the potential
of holding the administration to account for their constitutional or public law
breaches.

The Basic Structure Doctrine (BSD)

The BSD or the concept of UCA is based on the proposition that any parlia-
ment’s power to amend the constitution is subject to limits in the constitu-
tion. The limits can be expressly prescribed in the text (which is the case
in Bangladesh since 2011)77 or implicitly built into the constitution. In the
latter case, it is the judiciary that undertakes the task of discovering the im-
plicit limits and determining the constitutionality of any given amendment.
The Indian Supreme Court authoritatively adopted the BSD in Kesavananda
Bharati v State of Kerala (1973),78 where it said that a constitutional amend-
ment that breaches one or more basic structural features of the constitution
is liable to be invalidated. The decision discarded the hitherto dilemma about
the extent of implicit limits on parliament’s amendment power that was being
tested in India since the mid-1960s.
The Supreme Court of Bangladesh subscribed to the idea in its 1989 deci-
sion in Anwar Hossain Chowdhury v Bangladesh (hereinafter ‘the 8th Amend-
ment Case’).79 In the 8th Amendment Case, the SCAD had struck down part of
the 8th Amendment80 that difused the HCD into several regional permanent

74 For a similar trend in other South Asian jurisdictions, see Rehan Abeyratne, ‘Ordinary Wrongs
as Constitutional Rights: The Public Law Model of Torts in South Asia’ (2018) 54 Texas Int’l
LJ 1.
75 (2017) 5 CLR (HCD) 278 (full judgment in October 2017).
76 See Ridwanul Hoque and Sharowat Shamin, ‘Bangladesh: The State of Liberal Democracy’,
in Richard Albert (eds), (2017) Global Review of Constitutional Law (Boston College Clough
Center For the Study of Constitutional Democracy 2018).
77 Now see article 7B (inserted via the 15th Amendment of 2011). On Bangladesh’s eternity
clause (art. 7B) see Ridwanul Hoque, ‘Eternal Provisions in the Constitution of Bangladesh:
A Constitution Once and for All?’ in R Albert and BE Oder (eds), An Unconstitutional Con-
stitution?: Unamendability in Constitutional Democracies (Springer 2018).
78 AIR 1973 SC 1461 (a 7 to 6 decision).
79 (1989) BLD (Special) 1, Justice Afzal dissenting.
80 The other part made Islam the state religion. On the legality of the state religion part of
the 8th Amendment, see Shah Alam, ‘The State-Religion Amendment to the Constitution
of Bangladesh: A Critique’ (1991) 24(2) Verfassung und Recht in Übersee 209; Ridwanul
 The fifty years of Bangladesh’s constitutional journey 17

branches.81 Its reasoning was that the 8th Amendment violated an important
basic feature of the Constitution: the unitary character of the state. Later, in
2010 and 2011, the SCAD conclusively declared unconstitutional the 5th, the
7th, and the 13th Amendments. Further later, in 2017, it invalidated the 16th
Amendment, which is currently on a review hearing.82 In regard to other con-
stitutional amendments that confronted judicial scrutiny, the Court either en-
dorsed their constitutionality83 or lent them some legitimacy but not necessarily
without questioning their legality.84
While the BSD can be instrumental for constitutionalism and constitutional
durability, it can also serve as a tool for the subversion of constitutionalism.
Scholars are skeptical of the doctrine’s utility because of its ‘intrinsic’ uncer-
tainty85 or the ability to amend the constitution via the judiciary.86
As seen in the constitutional amendment challenges, the BSD has been a
vehicle for the politicisation of the judiciary. On the other hand, the Court
has mostly used the doctrine for the judicialisation of pure and mega political
issues. In the 13th Amendment Case, for example, the SCAD, by invalidating
the Amendment, had done ‘the groundwork to enable the political branches
to shun the NPCTG system arbitrarily’ via the 15th Amendment.87 The ruling

Hoque, ‘Constitutional Challenge to the State Religion Status of Islam in Bangladesh: Back
to Square One?’ (27 May 2016) Int’l J. Const. L. Blog <www.iconnectblog.com/2016/05/
islam-in-bangladesh> (the HCD refused to hear the challenge on the flimsy ground of the
petitioner’s lack of standing).
81 The literature on the Bangladeshi perspective includes the following: ME Haque, ‘The Con-
cept of “Basic Structure”: A Constitutional Perspective from Bangladesh’ (2005) 16(2) Dhaka
Univ Studies – Part F 123; MJU Talukder and MJA Chowdhury, ‘Determining the Province
of Judicial Review: A Re-Evaluation of “Basic Structure” of the Constitution of Bangladesh’
(2008) 2(2) Metropolitan U Journal 161; S Khan, ‘Leviathan and the Supreme Court: An
Essay on the “Basic Structure” Doctrine’ (2011) 2 Stamford J of L 89; R Chowdhury, ‘The
Doctrine of Basic Structure in Bangladesh: From “Calf-path” to Matryoshka Dolls’ (2017) 14
Bangladesh J of L 43; R Hoque, ‘Implicit Unamendability in Asia: The Core of the Case for
the Basic Structure Doctrine’ (2022) 4 Keele Law Rev 90; and K Ahmed, ‘Revisiting Judicial
Review of Constitutional Amendments in Bangladesh: Article 7B, The Asaduzzaman Case,
and the Fall of the Basic Structure Doctrine’ (2023) 56(2) Israel L Rev 1.
82 See Bangladesh v Asaduzzaman Siddiqui (2017) CLR (AD) (Spl) 1, discussed further later.
83 In some cases, the SCAD declined to invalidate amendments that increased the number of
reserved women’s seats in parliament. See Fazle Rabbi v Election Commission (1992) 44 DLR
(HCD) 14; Dr Ahmed Hossain v Bangladesh (1992) 44 DLR (AD) 109; and Farida Akhter v
Bangladesh (2007) 15 BLT (AD) 206.
84 In a 1981 curious decision, the HCD found the 2nd and 4th Amendments to be violative
of ‘essential features of the Constitution’ but refused to invalidate them. See Hamidul Huq
Chowdhury v Bangladesh (1981) 33 DLR (HCD) 381. On appeal, the SCAD eschewed the
question altogether in Hamidul Huq Chowdhury v Bangladesh (1982) 34 DLR (AD) 190.
85 Nafiz Ahmed, ‘The Intrinsically Uncertain Doctrine of Basic Structure’ (2022) 14(2) Wash-
ington Univ Jurisprudence Rev 309.
86 Chowdhury, ‘The Doctrine of Basic Structure in Bangladesh’ (n 81). See also Khan, ‘Levia-
than and the Supreme Court’ (n 81).
87 Ridwanul Hoque, ‘The Politics of Unconstitutional Amendments in Bangladesh’ in Rehan
Abeyratne and Ngoc Son Bui (eds), The Politics of Unconstitutional Amendments in Asia
(Routledge 2022) 228.
18 Ridwanul Hoque and Rokeya Chowdhury

party abused the BSD to gain an incumbency advantage by abolishing the

NPCTG system.88 There was arguably deeper politics in inducing the judiciary
to rule against the NPCTG. The 13th Amendment decision was a sharply split
decision of 4 to 3 judges, with the dissenting judges finding no unconstitu-
tionality in the country-specific institution of ‘unelected’ NPCTG.89 The then
chief justice allegedly expedited the hearing and delivered the verdict only
eight days before his retirement on 18 May 2011.90 All the three judges who
concurred with the chief justice eventually became Chief Justices of Bangla-
desh.91 By contrast, two of the three dissenting judges, despite each being the
most senior judge at the time, were not appointed as chief justice.92
Judicial politics via the use of the BSD is glaringly visible in Bangladesh
v Asaduzzaman Siddiqui (2017) (the 16th Amendment Case).93 In this PIL
case, the SCAD unanimously declared unconstitutional the 16th Amendment
that, in fact, restored an original provision of the Constitution (article 96(2))
providing for the removal of Supreme Court judges by parliament on the
ground of proven misconduct. The Court treated the 16th Amendment like
any other amendment but provided no or extremely weak reasoning on how
the restored article 96(2), which existed in the founding Constitution, could
be unconstitutional.94 This was a consequential decision. Because of a com-
ment that the then chief justice made in his opinion, Justice Sinha was forced
to leave the country and then resign when he was travelling overseas. Moreo-
ver, the government heavily relied on political considerations when appointing
judges in the SCAD after the 16th Amendment decision.
The principles of constitutional supremacy and popular sovereignty require
the judges to apply the doctrine of UCA extremely cautiously and rarely, and
only for the cause of preserving the constitutional identity. As recent cases

88 See further AA Khan, ‘The Politics of Constitutional Amendments in Bangladesh: The Case
of the Non-Political Caretaker Government’ (2015) 9 Int’l Rev of L 1, 12.
89 As Justice M Imman Ali in dissent observed, ‘the Thirteenth Amendment was neither illegal
nor ultra vires the Constitution and does not destroy any [of its] basic structures.’ See Abdul
Mannan Khan (n 50) 472.
90 Hoque, ‘The Politics of Unconstitutional Amendments’ (n 87) 223.
91 They are Justices Md Mozammel Hossain, SK Sinha, and Syed Mahmud Hossain.
92 The dissenting judges superseded are Justice Wahhab Mia and Justice M Imman Ali.
93 (2017) CLR (AD) (Spl) 1, endorsing the HCD’s opinion in Asaduzzaman Siddiqui v Bangla-
desh (2016) Apex Law Reports (HCD) 161. See further R Hoque, ‘Can the Court Invalidate
an Original Provision of the Constitution?’ (2016) 2(1) Univ of Asia Pacific J of L and Policy
13; MJA Chowdhury and NK Saha, ‘Advocate Asaduzzaman Siddiqui v. Bangladesh: Bangla-
desh’s Dilemma with Judges’ Impeachment’ (2017) 3(3) Comp Const & Admin L Quarterly
7.
94 For an analysis supportive of the SCAD’s decision, see Po Jen Yap and Rehan Abeyratne, ‘Ju-
dicial Self-Dealing and Unconstitutional Constitutional Amendments in South Asia’ (2021)
19(1) Int’l J of Con Law 127. For a diferent view see MA Sayeed and Lima Aktar, ‘“Constitu-
tional Dismemberment” and the Problem of Pragmatism in Siddiqui: A Reply to Po Jen Yap
and Rehan Abeyratne’ (2022) 20(2) Int’l J of Con Law 890.
 The fifty years of Bangladesh’s constitutional journey 19

show, there is an increasing judicial tendency to misapply the BSD or the doc-
trine of UCA in Bangladesh.

Constitutional failures and challenges

The Constitution proclaims democracy as the mode of governance, emphati-
cally declares the supremacy of the Constitution, mandates the holding of free
and fair periodic elections, ensures the separation of powers and judicial review
of laws and state actions, guarantees judicial independence, and enumerates
civil rights. Despite these ideals of constitutionalism, however, the political
and constitutional institutions in Bangladesh remain weak, which is evident,
for example, in the existence of a poorly functioning parliament,95 dominated
by an omnipotent, self-serving executive. As several chapters in this volume
will underline, the instability in constitutional politics, democratic backsliding
in recent times, the absence of judicial independence, and the lack of inde-
pendent fourth-estate institutions such as a functioning election commission
or a strong human rights commission, are some failures of the Bangladeshi
constitutional order.
While the adoption of PIL and the BSD has empowered the judiciary to
assert its authority and agency, both the constitutional text and practice have
failed to ensure a truly independent judiciary. There has been an increasing
trend of politicisation of the judiciary. Despite the enabling constitutional
clause, parliament has not yet enacted legislation determining the criteria for
appointments to the Supreme Court. As a result, Supreme Court judges con-
tinue to be appointed on political considerations.96 Successive governments
have indulged in various overt and ingenious means to manipulate the judi-
ciary.97 In particular, the wide and non-transparent political discretion under
article 95 of the Constitution in appointing judges to the Appellate Division
and in appointing the chief justice has been the vehicle for the politicisation
of the judiciary.
As the previous narrative testifies, constitutionalism or democracy has never
become stable. The biggest constitutional failure seems to be the absence of
an institutionalised system of free and fair elections. The existence of an Elec-
tion Commission as a constitutional body is far less than enough to ensure free
and fair elections. The power and leverages at the hands of the ruling party to
influence the commission as well as to seriously corrupt the electoral system
are the factors behind the said constitutional failure. All general elections held
under the incumbent government have been severely unfair, exclusionary, and

95 Nizam Ahmed, The Parliament of Bangladesh (Ashgate 2002).

96 On the appointment process in the Supreme Court, see generally Bangladesh v M Idrisur Rah-
man (1999) 19 BLD (AD) 203.
97 See Hoque, Judicial Activism in Bangladesh (n 42) 210.
20 Ridwanul Hoque and Rokeya Chowdhury

rigged.98 By contrast, general elections under caretaker governments (1991,

1996, 2001, 2008) were fairer. Logically, therefore, the unilateral abolition of
the NPCTG system via the 15th Amendment in 2011 is a notable failure.99
Beyond the free, fair, and multi-party elections, the most important element
of governance by consent has been largely absent from the political landscape.
This can be exemplified by the tendency of the ruling parties with a convenient
majority in parliament to amend the Constitution to serve their narrow and
anti-democratic interests.100 The successive ruling parties used constitutional
amendments to exclude the opposition, realise incumbency advantage, and
deepen the political divide that already exists in the confrontational politics of
the two major parties, the AL and the BNP.101 For example, the current ruling
party (the AL) enacted the 15th Amendment in 2011 to abolish the system
of NPCTG, which was brought to the Constitution in fulfillment of its own
demand when the party was in opposition.102
Another example of the enormous power at the hands of a majority gov-
ernment to influence or corrupt elections is the provision of holding elec-
tions within the period of ninety days preceding the expiry of the term of
parliament.103 This rule means that the members of parliament continue to
remain the members during the time of general elections; because of this,
they continue to enjoy undue privileges and powers over the other candi-
dates. This provision is arguably an antithesis to the concept of a free and
fair election.
There is yet another example of abusive constitutionalism, which is the in-
sertion in the Constitution of an eternity clause, article 7B, in 2011. Because
of article 7B, a long line of provisions including, for example, all fundamental
rights provisions (articles 26 to 47A) and any provisions relating to the ‘basic
structures of the Constitution’ have been made unamendable. Such a broad
eternity clause, which holds tight the hands of future generations as regards
their power to amend the Constitution is arguably unconstitutional.

98 A somewhat exceptional case was the first general election in 1973, although that election
too had problems of fairness. The unfairness was limited because there was not any strong
opposition party at the time and, hence, the incumbent government did not feel it necessary
to corrupt the election. See Bernard Weinraub, Bangladesh Chief Winning by Big Edge, The
New York Times (8 March 1973) <www.nytimes.com/1973/03/08/archives/bangladesh-
chief-winning-by-big-edge-11-seats-uncontested.html>. See further Hashmi (n 42) 138,
noting that there were ‘massive irregularities’ in the 1973 elections.
99 That the 15th Amendment was exclusionary and sufered a problem of legitimacy is evident
in the fact that the Bill passed the House amidst an opposition boycott by a 291–1 vote.
100 See further See Ridwanul Hoque, ‘Deconstructing Public Participation and Deliberation in
Constitutional Amendment in Bangladesh’ (2021) 21 (2) Australian J of Asian L 7.
101 Hoque, The Politics of Unconstitutional Amendments (n 87).
102 Hoque, ibid.
103 The Constitution, article 123(3).
 The fifty years of Bangladesh’s constitutional journey 21

Scope of the book: reflections and hopes

Being a celebratory volume, it was particularly challenging for the editors to
choose the chapters covering the whole breadth of Bangladesh’s constitutional
development. Given that challenge, the book’s scope is innovative in that it
does not include standalone chapters on oft-discussed areas such as judicial in-
dependence, constitutional basic structure doctrine, and public interest litiga-
tion. The volume contains fourteen chapters. Except Chapter 1 and Chapter
14, other chapters are divided into four parts.
Part 1 has three chapters. Chapter 2 presents a jurisprudential analysis of
the emergence of Bangladesh’s constitutional order and legal system. Here,
Nafiz Ahmed analyses Bangladesh’s emergence through the 1971 revolution
and the antecedent ‘extra-legal factors’, as an autochthonous constitutional
system. Ahmed claims that the emergence of Bangladesh’s legal system can be
understood better in light of HLA Hart’s theory of the rule of recognition –
the emerged system being ‘the new rule of recognition’. Chapter 3, by Kawser
Ahmed, focuses on the legal hierarchy in the national legal system, analysed
from the point of view of domestic (Constitution, local laws, and customs)
and international laws. Based on an examination of the Constituent Assem-
bly debates, text of the Constitution, and judicial decisions, among others,
Ahmed seeks to answer the question of the status of international law in the
Bangladeshi legal system and concludes that the constitutional design leaves
no doubt that, for implementation, international law is a separate system to
the domestic law.
In Chapter 4, Muhammad Rezaur Rahman profers a history of the founda-
tional value of secularism. The chapter’s particular focus is on the coexistence
of, or the conflict between, secularism and Islam. Secularism remained absent
from the Constitution from 1975 to 2011, while Islam was introduced as the
state religion in 1988. Since the 15th Amendment in 2011, both secularism
and the state religion have been sitting together within the same democratic
constitution. Rahman examines this ‘constitutional innovation’ from politico-
historical and theoretical perspectives and makes a call for a new discourse to
address the unresolved issues of national identity, secularism, and the role of
religions in Bangladeshi society.
Part II of the book (Chapters 5 to 7) covers the judicial role in the con-
stitutional dispensation, presenting such matters as the judicial contribution
to the rule of law, judicial policy-making, and the role of judicial review in
furthering constitutional goals including the separation of powers. Written by
the Hon Justice Syed Refaat Ahmed, Chapter 5 is an autobiographical and,
hence, unconventional chapter on the concept of rule of law in Bangladeshi
constitutionalism. Justice Ahmed in his usual, critical style of scholarship pre-
sents the most insightful analyses of major rule-of-law notions such as judicial
independence, equality, justice, and the principle of law. He believes that the
constant renewal of constitutional content establishes the Constitution as a
living and evolving social contract and that the judiciary can play a central role
22 Ridwanul Hoque and Rokeya Chowdhury

in such constitutional growth, to achieve the higher goal of rule of law. Justice
Ahmed powerfully concludes that how best constitutional renewals and living-
ness are achieved ‘depends both on judicial perceptions of rule of law and the
position of independence and autonomy of’ judicial actions.
In Chapter 6, Md Abdul Halim analyses judicial policy-making in light of
the separation of powers. For Halim, the indeterminacy of many provisions of
the Constitution presents the judges with a duty to read specific meanings into
them. This interpretive function entails judicial policy-making. He argues that
policy-making by the Supreme Court has rarely been in line with the principles
of constitutionalism.
Chapter 7 by Chowdhury Ishrak Ahmed Siddiky is about judicial review,
considered vis-à-vis the separation of powers. While Siddiky is generally ap-
preciative of the Supreme Court’s authority via the judicial review power, he
is critical of the Court’s role in times of emergencies, military dictatorships, or
difcult or over-majoritarian political environments. Based on case laws, espe-
cially some constitutional amendment decisions, he thinks that the judiciary
in some cases either breached the separation of powers or ‘consciously’ stayed
above the fray even when the Constitution was desecrated.
Part III sheds light on the authority of the Constitution, by examining the
executive role and performance; the role and contribution of parliament, po-
litical parties and their constitutional contributions or failures; and the instru-
mentality of judicial review as a separation-of-powers tool. Chapter 8 by Md
Lokman Hossain introduces this part by taking up the issue of constitutional
limits and executive accountability. Since the formative years of the Constitu-
tion, executive accountability has been one of the most challenging goals to
attain. Hossain forcefully argues that the Bangladeshi constitutional design
does not reflect a meaningful separation or balance of powers. For him, the re-
lationship between the executive and the legislature is not truly a Westminster
form and ‘the founding dream of an independent judiciary remains less than
realised’. He thinks that Bangladesh’s current position is not in the democratic
terrain but rather is one of a hybrid political system. Hossain’s conclusion is
that Bangladeshi constitutionalism has remained fraught with the post-colo-
nial misconception that a strong executive is required in newly independent
states such as Bangladesh.
In Chapter 9, M Jashim Ali Chowdhury analyses the Bangladesh parlia-
ment’s constitutional positioning and contributions. For Chowdhury, Bang-
ladesh’s original constitutional scheme of a Westminster parliamentary system
was influenced by the post-colonial elitist political fascination for the British
model as well as a desire of the founding fathers to avoid the evils of pre-1971
Pakistani authoritarian presidentialism. As this chapter poignantly reports,
Bangladesh’s parliament has been through diferent cycles of constitutional
changes from, among others, a democratic beginning to one-party presiden-
tialism, to military dictatorships, and to the ongoing one-party monopoly.
Chowdhury thinks that all these changes probably reveal the remarkable resil-
ience of the parliamentary system, despite the deviant constitutional practices.
 The fifty years of Bangladesh’s constitutional journey 23

He argues that the decline of principled liberal-conservative bipartisanship in

the face of an overtly dominating and dynastic party system has rendered the
constitutional design of the parliamentary system a ‘hollow device’ for ac-
countability and constitutionalism in Bangladesh.
Chapter 10 analyses the role of political parties under the Constitution with
particular reference to the process of constitution-making and amending. This
chapter by Nizam Ahmed is a unique chapter in that the constitutional role
of political parties has probably not been a subject of constitutional scholar-
ship and analysis before. Ahmed notes that political parties do play a more
important role in making and amending the Constitution than is often ap-
preciated. He hails the role of political parties in readopting the parliamentary
form of government in 1991 and devising the system of non-party caretaker
government (now defunct) in 1996 to ensure the succession of governments.
Ahmed, however, forcefully argues that the decline in or the absence of a com-
petitive party political system in recent times, with the emergence of a single-
dominant party, is ‘antithetical to democracy’.
Part IV (Chapters 11 to 13) takes up certain special issues relating to rights
such as social and economic rights and their enforceability, women’s consti-
tutional position, and the ideal of social justice. Chapter 11 by Muhammad
Ekramul Haque analyses the question of constitutional protection of economic
and social human rights that are widely considered unjusticiable across the
world. Here, Haque examines the intention of the framers of the Constitution
and the relevant judicial interpretations, and concludes that the constitution-
makers never intended these rights to be unenforceable for an indefinite pe-
riod. Rather, he argues, the framers were of the view that social and economic
rights could be made enforceable in the future. He further argues that there
are some apparatuses of constitutional protection for the social and economic
human rights embedded in the Constitution as state policy principles.
Chapter 12, by Psymhe Wadud, seeks to locate women within ‘we, the
people’, a term with which the preamble of the Constitution opens. Wadud
argues that despite the founding Constitution’s entrenchment of the principle
of formal equality, a lack of gender sensitivity permeates the constitutional
scheme. This is another unconventional chapter on women’s rights in that its
analyses transcend the traditional discourse of discrimination against women.
The chapter instead assesses the women’s status in the light of the constitu-
tional promise for their equality in the public realm, based on a scrutiny of
the constitution-making process and the relevant jurisprudence. The chapter
further argues that the under-representation of women in the political realm
violates the meta-constitutional norm of representative democracy.
Chapter 13, jointly contributed by Tashmia Sabera and Naveed Mus-
tahid Rahman, analyses social justice within the framework of ‘justice as
fairness’. This chapter, thus, supplements Haque’s chapter on social and
economic rights. Broadly, Chapter 13 examines the concept of socialism as
one of the four founding principles of the Constitution. Sabera and Rah-
man analyse the constitutional provisions relating to the distribution of
24 Ridwanul Hoque and Rokeya Chowdhury

resources. They conclude that a more robust juridical reading of the social
welfare system in Bangladesh is possible and desirable. For them, the rel-
evant provisions centred around the principle of social justice can be used,
especially by the Supreme Court, to enforce a much stronger distribution
of resources.
Ali Riaz’s Chapter 14 is the concluding chapter. Here, Riaz asks a fun-
damental question of constitutionalism. The question is whether constitu-
tionalism in Bangladesh is interrupted or has been absent from the polity.
Insightfully, Riaz underlines a divergence between the Constitution and poli-
tics, a trend that is discernible from the multiple phases of the nation’s con-
stitutional journey since 1972. For him, despite the Constitution’s express
commitment in this regard, popular sovereignty has been denied through
various means and representation of people circumscribed via the manipu-
lated electoral process on various occasions. He concludes that every system
of government tried and practised in Bangladesh, including the prime minis-
terial system, has been used to create the opportunity for the emergence and
practice of authoritarianism by way of abusing the Constitution. The results
of the practice of abusive constitutionalism have been the absence of checks
and balances on the executive, the creation of a pliant legislature and practice
in politics, the absence of judicial independence, and the rule by law instead
of the rule of law.

Conclusions: what’s in the future’s vault?

On a positive note, the history of Bangladesh’s Constitution presents a unique
case of constitutional endurance or resistance. Despite many attacks on the
Constitution, both by political and non-political forces, it has survived. Even
the military juntas did not overthrow the nation’s charter; they simply post-
poned it during their regimes. This narrative of constitutional resistance,
however, quite studiously suppresses the truth. The truth is that there were a
couple of constitutional replacements or dismemberments in the sense that es-
sential features of the Constitution – concerning its identity – were imputed.104
The first major constitutional dismemberment appeared in 1975 when the 4th
Amendment switched from a multi-party democracy to a one-party state. The
other major dismemberment was during the two martial law periods (broadly
from 1975 to 1990) when the country was governed largely by the dictates of
the military rulers and the martial law regulations were given a place over the
Constitution. When the Constitution was called back to operation during the
military regimes, it was a scenario of a constitution without constitutionalism.
All these constitutional dismemberments left deleterious impacts on Bangla-
desh’s constitutionalism as we see it today.

104 On this idea, see Richard Albert, ‘Constitutional Amendment and Dismemberment’ (2018)
43(1) Yale J of Int’l L 1.
 The fifty years of Bangladesh’s constitutional journey 25

As the chapters in this volume portray, in the past fifty years of the nation’s
constitutional journey (1972–2022), both governance and politics have often
veered away from the ideals of the Constitution. The concluding chapter by
Ali Riaz has seen this divergence between the founding ideals and the current
politics through a critical lens, arguing that constitutionalism has remained
ever elusive in Bangladesh. Instead of a deliberative and parliamentary form of
democracy, Bangladesh has recently graduated to a nominal or sham democ-
racy. Defying the promise of its transition to democracy in 1991, Bangladesh
began to embrace democratic decline soon after the reestablishment of parlia-
mentary democracy via the 12th Amendment. All power began to be concen-
trated at the hands of the prime minister. This emergence of an overwhelming
executive is analysed in several chapters in this book. Democratic backsliding
in recent years has been so drastic that it is hard to see any traces of the demo-
cratic constitutional identity.105 Particularly, since after the general election of
2014, which was avoided by all major opposition parties, Bangladesh started
transitioning to autocracy, and, in the aftermath of a massively rigged election
in 2018, the country is a truly hybrid regime now.106 These developments
have been analysed and highlighted in several chapters. The current regime
(especially since 2013) is sufering from a serious problem of the absence of
respect for human rights and dignity, which aspect is not covered in this vol-
ume though.
The future of Bangladesh’s Constitution really depends on how it can lend
its agency to mend confrontational politics by providing a guarantee of fair
and free national elections. The current and longest-ever constitutional crisis is
rooted in the ability of the ruling party to influence and corrupt the electoral
system. The electoral system has been unrecognisably engineered in recent
years to suit the desire of the ruling party. Apart from the challenge of holding
competitive, free, and fair elections, there remains the continuing challenge of
consolidating democracy and building democratic institutions in Bangladesh.

105 On democratic backsliding, see further Ali Riaz, ‘The Pathway of Democratic Backsliding in
Bangladesh’ (2021) 28(1) Democratization 197.
106 See Ali Riaz, ‘Voting in a Hybrid Regime Explaining the 2018 Bangladeshi Election’ (2020)
12(2) Asian Politics & Policy 251; and A Riaz and S Parvez, ‘Anatomy of a Rigged Election
in a Hybrid Regime: The Lessons from Bangladesh’ (2021) 28(4) Democratization 801.
Part I

The founding of the

Constitution, competing
legal norms, and identity
building
Another random document with
no related content on Scribd:
The Project Gutenberg eBook of Janet's boys
This ebook is for the use of anyone anywhere in the United States and most other
parts of the world at no cost and with almost no restrictions whatsoever. You may
copy it, give it away or re-use it under the terms of the Project Gutenberg License
included with this ebook or online at www.gutenberg.org. If you are not located in the
United States, you will have to check the laws of the country where you are located
before using this eBook.

Title: Janet's boys

Author: Annette Lyster

Illustrator: W. S. Stacey

Release date: November 4, 2023 [eBook #72020]

Language: English

Original publication: London: Society for Promoting Christian Knowledge, 1896

*** START OF THE PROJECT GUTENBERG EBOOK JANET'S BOYS ***

Transcriber's note: Unusual and inconsistent spelling is as printed.

JANET AND THE BROKER. Frontispiece.

JANET'S BOYS.

BY
 ANNETTE LYSTER,

AUTHOR OF
"A LEAL LIGHT HEART," "NORTH WIND AND SUNSHINE,"
"THE PIANO IN THE ATTIC," "MIDSHIPMAN ARCHIE," ETC.

ILLUSTRATED BY W. S. STACEY.

PUBLISHED UNDER THE DIRECTION OF THE GENERAL LITERATURE

COMMITTEE.

LONDON:

SOCIETY FOR PROMOTING CHRISTIAN KNOWLEDGE,

NORTHUMBERLAND AVENUE, W.C.;

43, QUEEN VICTORIA STREET. E.C.
BRIGHTON: 129, NORTH STREET.
NEW YORK: E. S. GORHAM.

CONTENTS.

CHAPTER

I. INTRODUCTORY.

II. THE ROAD TO RUIN.

III. IN LIVERPOOL.
IV. KELMERSDALE.

V. ALL THE WAY TO GATTIGO.

VI. MRS. RAYBURN'S CAP.

VII. THE BOYS' ESCAPE.

VIII. THE BABES IN THE WOOD.

IX. IN THE NEW HOME.

X. FRANK'S MESSAGE TO "MUDDIE."

XI. MRS. RAYBURN'S LETTER.

XII. FRANK'S MESSAGE REACHES "MUDDIE."

XIII. "AS WE FORGIVE."

JANET'S BOYS.

CHAPTER I.
INTRODUCTORY.

"FRED," said Mr. Rayburn to his only son, a well-grown handsome lad of
seventeen or thereabouts, "don't you think we should be much more
comfortable if we had a—if this house had a mistress?"
The speaker was a man of about sixty, but looked so fresh and hearty that
one might easily have concluded him to be much younger. The room in
which he and his son were sitting was a long, low one, well lighted by
three bay windows all on the same side; and though not a pretty room, it
used at one time to look homelike and comfortable. The room was the
same, and the furniture was the same, but the comfort and the homelike
look had vanished.

Ten years before the day on which Mr. Rayburn made this remark to his
son, comfort had departed on the death of Mrs. Rayburn, his wife and
Fred's mother.

Mr. Rayburn was the manager of Messrs. Hopper and Mason's great
brewery in a town called Hemsborough, in the northern part of
Staffordshire. He had filled this very responsible post for many years,
inhabiting the comfortable apartments over the great gateway of the
brewery. He was a very matter-of-fact man, without much sentiment
about him, and on getting his good appointment he had married, choosing
his wife carefully, with a view to being made comfortable and leading a
peaceable life. And his quiet, docile wife had never, in all her uneventful
life, had an idea beyond her simple round of womanly duties, which she
did to perfection, until her only child was about six years old, when she
suddenly took a severe illness and died in a few days. They had been
married for many years before Fred was born, and Mr. Rayburn had no
idea how to manage the child; so he sent him to school, and got on alone
as best he could. Presently the servant trained by his wife married, and
another came in her place, not trained by his wife, or, indeed, by any one
else.

Still, the poor man existed somehow, nor did any idea of a change
suggest itself to him until Fred left school, and got a clerkship in the
counting-house, living of course with his father. Judith Ames, the servant,
greatly resented the additional trouble thus given her: particularly was
she annoyed because Fred, instead of falling into the regular round of
habits which his father had adopted, and which made him "such a quiet,
dependable master, for what he did one day, he did every day, and so a
body knew where to have him." Instead of copying his worthy father in
this, Fred ran up and down the stone stairs by which the "Gatehouse" was
reached, about a dozen times every evening, and always unexpectedly.
Also, he played football and cricket, according to the season; he took long
walks, coming home muddy and hungry, giving endless trouble, and
demanding food at inconvenient times.
Moreover, he did what his father never did. He popped into the kitchen,
surprising Judith and some friends at tea, using the best china and
partaking of a much daintier meal than ever found its way into the
master's parlour. Fred told his father that Judith was cheating him; he
complained of her dirty, untidy ways and her bad cooking, and poor Mr.
Rayburn, who had long ceased to be comfortable, now found the other
desire of his heart out of the question, for to live at peace was impossible
to one member of a family of three when the other two were always
quarrelling.

To be the son of two such prosaic people as Mr. Rayburn and his wife, Fred
was rather a surprise. He was fond of poetry—even wrote something
which he called by that name; he was fond of music, and played the flute
a little. But quite enough too. He wished to have everything nice about
him, but did not wish to take any trouble about it. He did his work as a
clerk fairly well, but he did not like it, nor throw himself into it; he would
have preferred to be a great painter, or a great singer, or author, or a
traveller—anything, in fact, "with a little mind in it," he said to himself;
and many of his poems were addressed to his mind, with which he
condoled in pathetic terms. Meantime, on the whole, he enjoyed life very
well; but he certainly wished Judith far away pretty frequently.

On this very day on which Mr. Rayburn asked the question about a
mistress for the house, Fred and Judith had had a "row-royal" about his
boots—his best, beautiful new boots, which he had not used for some
days, and which he had found in the kitchen, uncleaned, and with the
frying-pan standing on their toes! And the dinner had been half done,
and, in fact, nothing was as it ought to be.

Now, to return to the conversation begun after dinner by Mr. Rayburn.

Fred started, and turned round to look at his father. He had been engaged
in writing the word "dust" in bold, legible letters on the looking-glass over
the mantelshelf, but he left the "t" uncrossed, shook the dust off his
finger, and stared at his father, getting very red.

"Why, of course. Why, yes, father, I suppose we should. But I'm rather
young yet, don't you think?"

"What has your age to do with it, my boy?"

"Why, of course my—that is, when I get married some day or other, the
house will have a mistress, you know."

Mr. Rayburn laughed.

"I'm afraid we can't wait for that, Fred. I would part with Judith and try
some one else, but that I have no hope that any servant will make us
comfortable unless we went to far more trouble than I'm inclined to take.
My work is quite enough for me. No, I thought of marrying myself."

Fred looked thoughtful.

"I declare, sir," said he presently, "it might be a very good plan."

"There's only one objection against it, Fred. I can make no provision for
my wife in case she survives me; or at least only a very small one. Your
mother's money—a few hundreds—is settled on you, and the little I have
saved ought to go to you too. For, you see, you may not get my situation
when I am gone, and in that case you'll want a little capital; for you'll
hardly go on as a mere clerk all your life. But if I state all this honestly to
the lady I have in my mind, I think she would be reasonable. She is poor,
and I suspect would gladly have a house of her own."

"Who is it, father?"

"I don't think you know her, but you must have seen her in church. She is
sister to my old friend James Thompson, with whom I go to play
backgammon every Saturday night. Her mother was Lord Beaucourt's
housekeeper, and the old lady died last year, so Miss Thompson came to
live with her brother. But Thompson has a houseful of young people, and I
fancy Miss Lydia might not be sorry to make a change. So it might be a
mutual convenience."

Fred gave his consent very graciously, expressing at the same time a
great longing to see Judith's face when the possible affliction in store for
her was first announced to her. Had he but known it, he might have had
that treat at once; he had only to open the door, at which the excellent
Judith was listening. Something in her master's manner when he came in
upon the scene about the boots had given her a fright, and she was
anxious to find out if she had anything worse to fear than a severe
scolding. She heard all! And tottering back to the kitchen, which, contrary
to the general habits of kitchens, was at the top of the house, she sank
upon a chair and began to sob.

"And such a servant as I've been to him," she moaned faintly, "such a
servant!"

Then she felt that she was an ill-used woman, and clenching her hand—a
good big hand she had, too—she said aloud—
"Miss Lydia Thompson! Miss, forsooth! Her mother wasn't a bit better than
myself, though she wears black silk and I know my place! But wait a bit,
Miss Lydia Thompson; you're not Mrs. Rayburn yet, nor shall be if I can
help it."

She sat meditating various ways of putting an end to the courtship, which,
I may remark, was not yet begun. Miss Lydia had as yet no idea of the
promotion that lay within her reach. But Judith was no witch, and she
could devise no better plan than to amend her ways, give fewer tea-
parties, cook the dinners decently, and dust the furniture; nay, she even
determined to polish Fred's boots.

But, alas! She was too late, even if she could have pulled herself together,
which I doubt; for she had fallen into very lazy, slovenly habits. But she
never had the opportunity. Mr. Rayburn was very prompt to act when once
his mind was made up. He spoke to his friend Thompson that very night,
ascertained that Miss Lydia had a very little money of her own, and would
be glad, her brother thought, to have a house of her own too. He said also
that she was a capable housekeeper, and understood the art of cookery to
an extent that was a constant admiration to his wife and daughters; and
that she was, moreover, good tempered and easy to get on with. So Mr.
Rayburn made his plain and unromantic proposals, and was accepted after
a few hours' consideration. And before Judith had well begun her
projected reformation, she found, herself possessed of a mistress; but it
was only for a short time. In a few days after the wedding she was quietly
sent about her business, and a smart young person in white apron and
cap installed in her place. Very soon the Gatehouse resumed its old air of
sober comfort and spotless neatness, and once more peace and quiet
reigned.

I do not think that Mr. Rayburn ever had any reason to repent of his
second marriage, and yet I know that had he really understood his wife,
he would have disapproved very much of her. The second Mrs. Rayburn
was an utterly selfish woman, and had been utterly selfish all her life. But
she was far too clever to show it openly. She had ruled her mother, but
had made her rule pleasant. The good woman had sons and married
daughters, whom she would at one time have liked to help occasionally;
but she was convinced, she hardly knew how, that she ought to save
every penny for poor Lydia, the only unmarried one. At her brother's
house, Lydia had found it her best plan to be helpful and pleasant to her
sister-in-law, and had made herself very useful to the girls. And now she
saw that to stand well with Fred was her cue, and she proved a delightful
stepmother.
I must not make this part of my story too long, as it is really only
introductory, but I do not see how to make the events that follow clear
without this preparatory sketch. For about ten years the household went
on almost without a change. Fred settled down into a good clerk, and rose
in the counting-house; he still played the flute, but he no longer wrote
poetry, having, indeed, failed to find a publisher for his laments over his
wasted intellect. And, indeed, though he was a good fellow enough, I do
not think that any great waste was possible in that matter.

He fell in love with a very nice, pretty girl, just home from school and they
were engaged with the full consent of all concerned; but Janet Gray's
father thought her too young to be married just yet, so they had a long
and very happy engagement. And then, Fred being twenty-seven and
Janet twenty, the day was fixed for their marriage, and all the pleasant
bustle of looking for a suitable house was going on, when one day, as
Fred, Janet, and Mrs. Gray were inspecting the twenty-third house, all
three very busy and happy, the messenger from the brewery came
running up the terrace, and told Fred to hurry home, as his father was
very ill. Before the young man reached home, his father was dead; in
fact, he was dead when the messenger was sent, though no one could
believe it.

Mrs. Rayburn was sincerely sorry. The life had been very pleasant to her,
and she felt that even if she found another husband she would never like
him as well. Just, too, as she was about to be rid of Fred and his flute,
and free to set about the task of convincing her husband that at least half
his savings ought in justice to be left to her. But she was very practical,
and quickly turned her mind to consider how she could best secure her
own well-being.

At first she tried to convince Fred that he ought to give up all idea of
being married for a considerable time; but poor Fred, who sorely missed
his kind old father, longed for Janet's companionship, and would not hear
of a long delay. Mrs. Rayburn felt that in a small suburban house, with a
clerk's salary and a very tiny private income, there would be no home for
her! So she set herself with the kindest zeal to persuade Messrs. Hopper
and Mason to put Fred into his father's place. Now, it so happened that
there was a young Mr. Hopper just home from Germany, who rather
wished to fill that post himself, being fond of work, and thinking that the
business might be very much increased by more enterprising ways. But,
of course, the son of one of the principals could not live in the Gatehouse,
and do all the plodding work of the manager. So the matter ended in
Fred's being appointed manager, on the understanding that Mr. Francis
Hopper was to be in a very special manner his chief and leader.
For the months that intervened between Mr. Rayburn's death and Fred's
marriage, the widow kept house for her stepson, and made herself so
pleasant to all parties that Janet told her lover that they ought to ask her
to stay as long as she liked. So she stayed, and every one was delighted
with the nice tact with which she helped the inexperienced young wife.
Oh, she was a wonderful woman!

All the time this wonderful woman was quietly filling her purse, looking
forward to the time when Fred's family would increase, and the Gatehouse
might no longer suit her as a home. She had saved a good deal of money
from her housekeeping allowance, though no one suspected it, because
she always kept everything so comfortable. She now began to speculate
cautiously with her hoards, and thanks to a brother who was in a
stockbroker's office in London, she was very fortunate.

Little did any one think, as she sat so quietly at her work of an evening,
listening to Fred reading aloud or playing the flute, or perhaps to the baby
crying—even good babies cry sometimes—that she was mentally gazing at
the sitting-room she meant to have at some not very distant time. She
meant to live in London, and to enjoy herself; her rooms were to be
models of comfort and elegance, and were to be all for herself; no one to
please but herself, no one to flatter, no one to humour, no flute to listen
to, no baby to cry. Everything that she liked, plenty of it, and all her very
own, exclusively for her own use. Mrs. Rayburn was deeply attached to
her "own dear self."
 CHAPTER II.
THE ROAD TO RUIN.

I WONDER if any of my readers are wondering what is the want in my first

chapter? For there is a want, and I feel it myself. For all that I have said,
so far, there might be no such thing as religion in the world. Self-interest
is the only "motive-power" that I have mentioned. To be respectable, to
be comfortable, to make or save money, to be happy in a quiet way—
these are the motives I have spoken of, because, alas! They are the
motives that governed the lives of those of whom I was writing.

Is it not sad to think that, in a Christian country, after nineteen centuries

of Christianity, people can contentedly live as if they had never learned
the truths that our Saviour taught? I do not mean that their lives would
have been the same if Christianity did not exist in the country. For
Christianity gives us all of civilization that is worth having, and civilization
is actually necessary before a quiet life is possible. But do you not think it
is very ungrateful to accept the blessings and to ignore or to forget Him
Who "ascended up on high to give gifts to men"?

There were excuses for these people, no doubt, for Hemsborough was, as
concerned religion, a very sleepy place. Yet they all went to church or
chapel at least once every Sunday—even Mrs. Lydia did so: it was a nice
quiet place for thinking over her plans. Even poor Fred, though he had
aspirations and a mind, and wrote poetry and played the flute, never
dreamed of questioning the usefulness of going to church: his mind did
not take an independent turn.

Fred, being no longer a boy, was becoming just as anxious as any one to
make money, live comfortably, and provide well for his children. The
misfortune was that this wish, instead of making him work hard and find
pleasure in it, made him discontented and anxious to find some short cut
to fortune. He found it very galling that he was not as completely
manager of the brewery as his father had been, forgetting that if such a
manager as his father had been wanted, he would not have got the
situation. Mr. Frank Hopper was very kind and pleasant, but he was
distinctly the master; and although Fred was flattered by his friendly
manner, and much pleased when he offered to be godfather to his first
boy—the eldest child was a girl—still, he felt that he was only a kind of
head clerk, or foreman, instead of managing the business himself, and he
resented this in private.
I wonder how often "lead me not into temptation" means "give me grace
to be contented"? Certainly a discontented man is a man peculiarly open
to temptation. And it came to Fred through his stepmother. I do not know
exactly how he discovered that she was using her money, her
"insignificant little sum of money," as she called it when he spoke to her,
in speculating. He warned her that she was running a risk. She assured
him that she ran no risk, and that she had really increased her store "a
little." But she never mentioned to him her brother, the stockbroker's
clerk.

Not unnaturally Fred began to think that if a woman like his stepmother
could make money in this way, he could no doubt do very much better.
There was a rule in the firm that no employé should speculate, on pain of
dismissal. But, then, no one need ever know! So Fred Rayburn set out
gaily on the road to ruin.

When he had been married for some years, a great grief befell him and
Janet. They had three children, a girl and two boys, and they all three got
the measles, and the little girl died. Little Frank and the baby, Fred,
recovered. Frank was a very loving little fellow, and long after they hoped
he would have forgotten his playfellow, he would begin to cry at the sight
of some toy or picture which reminded him of her, and his words:

"Where is Lily? Oh, I want Lily," went to his mother's heart.

At first, Janet tried to turn his thoughts into some other channel; but
Frank still "wanted Lily," and at last Janet began to comfort him by telling
him that Lily had gone to heaven, and was very happy—every one was
happy there.

"Who takes care of her, muddie?"

"God, my dear."

"Does He love her?"

"Oh, yes; very much!"

Frank thought this over for a while, and presently remarked—

"But we love her too. Oh, I want Lily back again, muddie!"

"She cannot come," poor Janet said slowly; "but you must be very good,
and then some day you will go to heaven too, and see her again."
Hereupon Frank startled her by asking, "Who told you that, muddie? How
do you know about it?"

For a moment Janet did not answer. How did she know? Did she know it at
all, or was it only the easiest way to comfort Frank?

"Oh, muddie, you did make that out to stop me crying! Oh, where is Lily
gone?"

"I did not make it, indeed, dear. It is all in the Bible."

"What's the Bible?"

"A book, dear. I wish I knew it better, and then I could read to you about
—"

"About Lily?"

"No; it was written long, long ago. But about heaven."

"Is it true, muddie?"

"Oh yes! God wrote it; that is, He told His servants what to write in it."

"Do read to me about heaven, muddie. Lily was good, wasn't she? I'll be
good, too."

Janet had a beautiful Bible, one of her wedding presents. It lay on a little
velvet-covered table, and it was not dusty, because Janet kept everything
very neat and nice. But it was quite as new-looking as when she first had
it, and she had no other. However, she opened it now, and after much
turning over its leaves, she read some verses from the last two chapters
of the Revelation.

But either this was above the child's comprehension, or some strange
instinct told him more than Janet could say, for he set up a terrified cry,
and declared with tears and sobs that "he did not want to go to heaven—it
was too grand and big. And oh, Lily would not like it either."

It was long before Janet could quiet her boy; and as she sat beside his
little bed that evening, and saw how disfigured his pretty little face was,
all tear-stained and red, and how every now and then a great sob shook
his slender frame, she began to wonder what on earth she could say to
quiet him when next he "wanted Lily."
Moreover, his cry that "Lily would not like it" had awakened an echo in her
aching heart. That little timid, loving girl of hers, so easily frightened, so
apt to cling to "muddie"—ah, what a poor little thing to go all alone into a
strange place, however beautiful, where she knew no one! Janet lived to
see that these thoughts were very ignorant, and even now she had a dim
feeling that she was wrong to think, thus; and so, between a desire to
comfort Frank and a terrible need of comfort for herself, she began to turn
over the pages of her neglected Bible, and to read a little here and there.

And if ever people tell you that there is no comfort and no help to be
found in the Bible, just remember that this is generally said by people
who do not read it. Janet presently came upon the story of the little ones
brought to Christ for a blessing, taken up in His arms, welcomed and
loved. "Suffer little children to come unto Me, for of such is the kingdom
of heaven." Yes, Lily was a lovely, innocent, good child; her mother could
quite believe that "of such are the kingdom of heaven." And Christ was
there; Lily would have been "suffered" to go to Him. It was a ray of
comfort—just a ray of that "Light that lighteth every man"—the first that
had shone into Janet's heart. But the rays of that Sun have a most
wonderful power of increasing and brightening. Janet soon read her Bible
for other things besides a need of comfort. She was not clever, but she
had plenty of good sense; and before long, she was a different woman,
and her two little boys were carefully taught and trained.

But her husband did not altogether like her "new notions;" he thought
them harmless, indeed, "if she did not go too far," but he had no
sympathy with them, and silenced her when she tried to share them with
him. Not unkindly—Fred never was unkind.

Frank was about six years old, and little Fred about four, when events
happened which broke up that little home over the brewery gate, and
scattered the family far and wide.

First, Mrs. Rayburn's brother, growing overbold from long success,

ventured all his own savings and all his sister's money in one great
venture, and lost it. The poor woman had but a few pounds left in the
world, and she took to her bed and very nearly died of the shock. Janet
was so occupied with her that she failed to observe how uneasy and
unhappy her husband seemed. Fred had indeed lost a good deal of
money; his little capital was slipping through his fingers so fast that it was
wonderful that he did not leave off his speculations, and keep what he had
left. But this seems to be the last thing a man thinks of doing, if he has
once taken to speculation; and the day came when he had to pay away
the last of the money his father had left him.
But, though this was bad, there was worse to come. I do not understand
these things well enough to tell you exactly what he did; but I know he
made a reckless effort to regain what he had lost without having any
capital to pay up if he failed. And he did fail, and found himself in a most
miserable position. Not only did he owe money that he could not possibly
pay, but, of course, the whole affair became generally known, and that
meant ruin.

He was dismissed from his post, and Messrs. Hopper and Mason refused
to employ him again even as a clerk: he just got a quarter's salary instead
of a quarter's warning, and one week in which to pack up and turn out of
the Gatehouse. And he had to go home—home! It was that no longer—
and tell Janet, who knew as little about the impending misery as did poor
little Frank and Fred. The children were playing in the parlour when their
father rushed in, haggard and wretched.

"Where's your mother, Frank?"

"In grandma's room, I think."

"Run and tell her to come here to me. Take Fred with you, and go to the
nursery, and stay there. Do you understand? Stay there."

For Frank, all unused to be spoken to thus by his good-tempered,

pleasant father, was staring at him in silence.

"Yes, father; but, oh, you do look so! What ails you, father?"

"Go, child, and send muddie here. I want her. I have no time to talk to
you."

Frank took the other little fellow by the hand, and they trotted off
together. He knocked at the door of Mrs. Rayburn's room with a soft little
hand. Janet knew the sound, and came to him.

"Muddie, father's in the parlour, and you must go to him; he wants you.
Oh, muddie, he does look so!"

"What does he look like?" Janet asked, smiling.

"Well, like the p'orligal son in my picture-book," answered Frank, after

considering the matter.

Janet laughed, closed the bedroom door gently, and went to the parlour.
She was still laughing when she entered it. Poor Janet!
It was a cruel business, a horrible task for Fred Rayburn. It was so hard to
awaken Janet's fears, so hard to make her believe that he was in earnest.
But at last it was done; and then he was surprised to see how bravely she
bore the tidings, and how full of practical help she was.

"Fred dear, the worst of it is your chance of being arrested. I don't think
Mr. Henley has any right to threaten that, for the fault is his as much as
yours. Have you any money, dear?"

"My quarter's salary."

"And I have twenty pounds—my little savings. I meant to surprise you;

but, never mind that. Dear Fred, you must get away at once. The sooner
you do so, the sooner you can begin life again, and we must earn enough
to pay this debt. I will go at once and beg Mr. Henley to wait—not to have
you searched for."

"You misunderstood me, dear. There is no danger of my being arrested at

once. The danger is if Henley took proceedings against me, I might be
imprisoned for—fraudulent dealing."

"Well, if you are not here, he is less likely to do that, don't you think?
And, in any case, you must get away; you will suffer less so."

"How can I leave you, Janet? And yet, indeed, there is no use in my
staying. As soon as ever it is known that I am dismissed, Henley will
begin proceedings; but I won't go without you and the boys. Let us get
away to-night; we'll go to America. I may get employment there. I must
pay that money. Poor father, if he only knew! But the great thing is to get
away."

"I wonder, Fred, would Mrs. Rayburn lend you money enough to pay
Henley? Then you could stay here, where you are known, and—"

"Janet, Janet, do you not yet understand that to go where I am not known
is my only chance? But certainly if I could quiet Henley, it would be a
great thing, and I know she has money. I'll go and ask her; she is very
good-natured."

"And I will pack your things. You will go to-night, and leave me to sell the
furniture and follow you with the children."

"You forget—the greater part of the furniture belongs to the house. My

father bought a few things after his second marriage, and there is your
piano. But we'll settle all that when I have spoken to grandma. I'll go to
her now. It is partly her doing, so she may well help me," he muttered as
he left the room.

"What a good girl Janet is!" he thought. "Half the women I know would
have cried and scolded; not one word of reproach from her! Oh, I have
been a fool! And we were so happy."

It was easier to make his confession to Mrs. Rayburn than to Janet; but
Fred little knew how near he was to learning more of dear, good-natured
grandma's true character than he had learned in all these years! Her one
consolation had been, that she still had her comfortable home; now, in a
moment, she learned that she must look out for some means of earning
her bread. In her sudden anger, she sat up in her bed and began—

"You don't mean to tell me that you—"

But she was very weak, having been seriously ill, and here the words died
away on her lips, and she fell back, buried her face in the pillow, and
burst into tears. And before she could speak again reflection had come to
her aid. Fred was a young man still, and might yet be a useful friend
again. So she told him sadly how things stood with herself, and that she
regretted it more for his sake than for her own. For she had long thought
that she would have money enough to help him to educate the darling
boys, and put them into good professions. Now, alas! that would never
be, for she had lost every penny; she was literally a beggar!

Fred, quite touched by her kindness, told her that they were all in the
same boat, and must stick together. He looked upon her just as if she
were his mother. She must come out to him with Janet.

"I couldn't think of it, Fred. You have your wife and children to care for; I
must work for my own bread. I shall write to Lord Beaucourt; he had a
great liking for my mother, and may help me to a situation. You have
mouths enough to fill without me."

And when he had left her, she said to herself, "Ay, mouths enough, and
very little to put into them! A tolerably good clerk is all you are, my boy,
and now you have not even an unblemished character. I should have to
work all the same, and maybe for them as well as for myself. No, thank
you, Mr. Fred; it is not playing the flute that will help you now, and if my
lord will get me a snug place, as he offered to do when poor mother died,
I don't want to have you on my hands. I think I was a fool not to take the
offer then. What great good has my marriage done me? By the way, Janet
has a brother somewhere, doing well, if I remember right. But no, Fred is
not likely to do well after all this; I'll keep to my resolution."