Determining the province of Judicial Review: A re-evaluation of ‘Basic Structure’ of the Constitution of Bangladesh
Dr. M. Jafar Ullah Talukder*
M. Jashim Ali Chowdhury**
Published in the Metropolitan University Journal (Vol 2 Issue 2), a peer reviewed journal.
Abstract
The fascinating doctrine of Basic Structure resides in the nitty-gritty of the highly sophisticated debate on the scope of constitution amending power. It has become a vibrant tool of judicial activism to protect the constitutional edifice faced with the invincible parliamentary super majority from ruination. The substance of the claim is that there are certain structural pillars of the Constitution which cannot be dismantled by parliament in the name of amendment. It was planted strappingly in the judicial culture of Bangladesh by Anwar Hossain Chowdhury v. Bangladesh 1989 BLD (Spl) 1. Though since Anwar Hossain it has got a confident practical acceptance, a plain reading of Article 142 of the Constitution puts the doctrine into the fogginess of controversy, incongruity and inapplicability in certain cases. This article aims at outlining the clarified range of the reach of the doctrine as well as the flat standard of its identification to shun the duskiness rotating round the contents of the notion.
1. Introduction
The celebrated doctrine of Basic Structure is the most outstanding constitutional ‘invention’ of the Indian Supreme Court in Kesavananda Bharati (His Holiness Kesavananda Bharati Sripadagalavaru v State of Kerala and another 1973 (4) SCC 225ff). The gist of the dictum is that parliament could not use its amending powers to 'damage', 'emasculate', 'destroy', 'abrogate', 'change' or 'alter' the 'basic structure' or framework of the Constitution.
Since then the premise of this proposition has become a cause celebre (Hossain and Omar, Coup d' etat) in some newer Commonwealth countries especially in South Asia. In Bangladesh it was given a thriving trial by the Appellate Division in Anwar Hossain Chowdhury v. Bangladesh 1989 BLD (Spl) 1. A majority of 3:1 of the Appellate Division of the Supreme Court struck down the Constitution (Eighth) Amendment Act, 1988 establishing six permanent Benches of the High Court Division outside Dhaka on the charge of being violative of the basic structure of the Constitution. While scrutinizing the Anwar Hossain case three most striking constitutional implications of it become noticeable.
First, the Judiciary has got a free hand in defining basic structure making the concept a fluctuating one and hence bad. Second, the judiciary has got a final say over the power of the parliament to amend the constitution. Third and the most sweeping one is that judiciary will thereby not only trump over the ‘will of the people’ expressed through an elected legislature, but also the 'absolute will' of the people in case of amendments effected through referendum.
Against this backdrop, even though feeling deeply associated with the platitude that a democracy likes ours is vulnerable to its own representatives due to ‘excessive adventures with power’ coupled with uncertain political consciousness and illiteracy of the people (Sethi 41), this paper argues:
First, that the plea of inherent limitation on the power of amendment is not plausible as it makes certain provisions of the Constitution (which again are to be determined by the court on case to case basis) virtually fixed for ever;
Second, that though mere parliamentary amendments (effected through two thirds majority in the House) may be subjected to judicial oversight, amendment effected through referendum (Article 142 (1A)) must not be; and
Third, the judicial oversight on parliamentary amendment again should be circumscribed by fixing or expanding, if necessary, the list of basic structures in Article 142 (1A) of the Constitution so that the basic structure does not become a matter of continuing uncertainty.
Before the assertions are presented with justifications and replies to possible objections, we start with a brief account of the constitutional provision regulating the amendment procedure.
2. Amending process of the Constitution
The Parliament is given the legislative power in Article 65 while the procedure of amending the constitution is prescribed in Article 142 of the Constitution of the People’s Republic of Bangladesh. An amendment to the constitution may be made through a Bill passed in the parliament by the votes of not less then two thirds of the total members of the Parliament. There is however, clause (1A) inserted in Article 142 by the Second Proclamation Order No IV of 1978. This clause provided for referendum in excess of two thirds majority in cases where the amending Bill intended to amend the preamble, any of the Articles 8, 48, 56, 58, 80, 92A and 142. The President shall refer the Bill to referendum before his assent his given. This again was amended by the Act No XXVIII of 1991 which omitted Articles 58, 80 and 92A from the list.
3. Is there anything unamendable in the Constitution?
In Anwar Hossain the Court emphasized on the inherent limitation on the power of amendment. It was assumed that amending power is a limited power, by express provsions or necessary implications. Justice Shahabuddin Ahmed made a difference between ‘adoption of a new constitution’ and ‘the derivative power of amending the constitution’ and having regard to the term ‘amendment’ took the view that amendment of the Constitution does not mean its abrogation or destruction or a change resulting in the loss of its identity and character (Para 378).
The contention that ‘amendment’ does not mean fundamental change resulting in the losing of identity may be disputed at least on three grounds. First, if the fundamental character of a constitution can never be changed, should it not mean that a particular generation is governing the future from the grave particularly when ‘this Constitution does not contain any provision to repeal or replace the constitution’ (B H Chowdhury J in Anwar Hossain para 256)? Secondly, the presence of Article 142 (1A) along with the absence of provision for ‘replacing or repealing’ the constitution makes it clear that there is no other way to effect change, either trivial or drastic, in the Constitution except the Article 142 procedure. There is no provision for establishing a Constituent Assembly to overhaul the Constitution if necessity arises.
Thirdly, our constitution is ‘the solemn expression of the will of the people’ (Article 7). Now think of a situation when the people of Bangladesh think of a completely new version of it with fundamental changes in the philosophy and structure of the Constitution. Any such effort will not be tenable under the scheme of Basic Structure of the present Constitution as there are some basic features which according to Anwar Hossain are not amendable in any case (Para 255). Should we construe the intention of the framers of the Constitution in this way? An unamendable constitution is the worst tyranny of time. So the argument of inherent limitation is a misnomer to establish that there are some provisions which can never be changed. Constitution is particularly hard to amend but not unamendable.
4. Judicial Review of Constitutional Amendment
On judicial review of constitutional amendments, some poses an outright rejection of the concept, while some other asserts a sweeping claim of such power. However, we are not willing to generalize the formulation in that way. Taking cognizance of the nature and modes of amendment, our stance on judicial review of constitutional amendment is distinct for two types of amendments which we call parliamentary amendment and popular amendment.
4.1. Amendment made by the Parliament alone
While judicial review of laws passed by parliament is marked as a precursor of constitutional supremacy, judicial review of the constitutional amendments is seen with both ‘reverence and suspicion’ (Kamal 139). There are arguments disputing the judicial review of parliamentary amendment. First, some argue that Judiciary should protect the Constitution as it is and check that ordinary laws do not violate the Constitution. The Judiciary should not define how the constitution should be which, it is argued, the ‘basic structure’ purports to ensure. If the Court ventures into this path, that would be tantamount to Judicial Supremacy or 'government by the court' (Hossain and Omar, Constituionalism).
Secondly, amendment of the constitution being a political question should remain out of judicial review (Hossain and Omar, Constitutionalism). Thirdly, the amending power of parliament (constituent power) is distinct from its plenary legislative power. The power of amendment is not dealt with in the Part which deals with composition, powers and functions of Parliament and Article 65 is not applicable in case of amendment of the Constitution under Article 142 (Islam 404). In exercising its constituent power the Parliament is responsible to electorate only and hence judicial review of constituent action should be barred (ATM Afzal J in Anwar Hossain Para 530).
It is submitted that all the arguments lack strong foundation and are rebuttable. Firstly, it is one of the salient features of ‘Constitutional Supremacy’ that amendment of the constitution is particularly rigid and cumbersome. There are many ways to ensure this. Requirement of two thirds majority for constitutional amendment is only one of them. Judiciary as a guardian of the Constitution should have a say in constitutional amendment. This is nothing but another sign of rigidity of the Constitution. Once elected, the parliamentarians do not inherit a blanket power to do everything they wish until they are de-elected in the next election (Hoque). This argument is extremely relevant. This if not ensured will make the constitution a plaything in the hands of the majority party ridden parliament and thus will give birth to ‘Parliamentary Supremacy’ which also is surely not contemplated by the framers of the constitution.
As to the second point, it is not disputed that amendment may be the result of political agenda or policy determination. But is this not the case with almost every law passed by a particular parliament? Does law making by a particular ruling party not reflect its political ideology and convenience? So if political question is not evoked in ordinary legislation why should it be preached only for constitutional amendments? Moreover the doctrine of political question is not applicable at least in parliamentary amendments due to Article 7 which implies the concept of limited government. Nobody can transgress the limit by asserting the doctrine of political question (Islam 311). The Appellate Division in Special Reference no 1 of 1995, 47 DLR (AD) 111 observed that:
‘There is no magic in the phrase ‘political question’. While maintaining judicial restraint the Court is the ultimate arbiter in deciding whether it is appropriate in a particular case to take upon itself the task of undertaking a pronouncement on an issue which may be dubbed as a political question.’
Thirdly, the proposition that the parliament’s power of amendment is a constituent power and as such is not subject to judicial review also seems no more to hold the field. In Anwar Hossain case while wrongly conceding the difference between the constituent power and legislative power, the Court wrongly emphasized on ‘inherent limitation’ on the power of amendment to hold it to be subject of judicial review. Despite agreeing with the obiter dicta, we submit that the plea of amendment being a constituent power better suits in another place which we address later. That ‘inherent limitation’ lacks substance is already shown. Rather there is a far better approach to bring parliamentary constitutional amendment under judicial review which was mistakenly rejected in Anwar Hossain.
It was argued in Anwar Hossain case that an Act of Parliament amending the constitution will be ‘any other law’ within the meaning of Article 7 to attract the operation of the provision ‘if any other law is inconsistent with this Constitution and other law shall, to the extent of the inconsistency, be void’ (Article 7(2)). This was rejected simply on the ground that an amendment is passed in the exercise of constituent power.
But later in Kudrat-e-Elahi v. Bangladesh, 44 DLR (AD) 319 Mustafa Kamal J held to the contrary, “This Constitution taken as a whole is a law, albeit the supreme law and by ‘any other law’ and ‘that other law’ the Constitution refers to the definition of Law in Article 152(1), including a Constitutional Amendment (Para 84). Under Article 152 (1) "law" means any Act, ordinance, order rule, regulation, bye-law, notification or other legal instrument, and any custom or usage having the force of law in Bangladesh. This was again confirmed in BIMW Ltd v Government of Bangladesh and Ors 14 BLT (Special Issue) 2006 widely known as The Moon Cinema case (Page 54). Moreover, if we compare Article 7 with Article 26 it is seen that while the latter was amended by the Third Amendment to mean that it does not hit Article 142, the former was not amended to such effect (Islam 403). So an amendment under Article 142 is very well hit by Article 7.
In fact judicial review of parliamentary amendments has become a regular practice in Bangladesh. The Tenth Amendment was challenged in Dr. Ahmed Hossain v. Bangladesh 44 DLR (AD) 109, 110 and Fazle Rabbi v. Election Commission 44 DLR 14. The Thirteenth Amendment was challenged in Mashihur Rahman v. Bangladesh 1997 BLD 55. The Fifth Amendment was challenged in The Moon Cinema Case. All the challenges were decided on merit and no question regarding the propriety of judicial review was raised.
4.2. Amendments made through referendum
While launching Basic Structure, the Appellate Division did not make any distinction between amendment made by two thirds majority in the House and amendment effected by the House plus referendum. This is very much important in the sense that though the 8th Amendment was not effected through a referendum, the pronouncement of the Court at least theoretically runs the risk of affecting a popular amendment.
Only one of the judges, B H Chowdhury J made reference to the Martial Law Amendment of Article 142 rendering the Preamble and some other provision unamendable without referendum to the people (Para 256). He made that reference only to establish that the constitution itself recognizes something as ‘Basic’ over which the majority was pondering. Yet by analogy of the phrase ‘unamendable without referendum to the people’ we may presume B H Chowdhury J to acknowledge that these ‘basic principles’ are amendable by the people.
But there is a tendency to camouflage the Article 142 (1A) as whole in the basic structure talk. It is evident when Mahmudul Islam, a pro basic structure scholar, criticizes even the elusive reference made by B H Chowdhury. To him such a reference is misleading. As basic structure is an issue of original dispensation, it cannot depend on the interpretation of an amended provision (Islam 394). But total camouflage of Article 142 (1A) or its spirit in Basic Structure discourse will not be logically correct. A distinct approach to amendments under 142 (1A) procedure is warranted at least on three grounds:
First, even from the perspective of ‘originalism’ (the ‘romantic theory’ of literature wherein, the meaning intended by the author of a text is privileged and is placed above all the contesting meanings that are argued) it is well evident that while the concept of limited government in Article 7, upon which Anwar Hossain resides, is intended for the different functionaries of the state, the constitution being the expression of their will, the people’s right to amend any provision of the constitution by way of addition, alteration, substitution or repeal is unlimited.
Secondly, the plea of amending power to be a constituent power mentioned in the previous section nicely fits with popular amendment under Article 142 (1A). It is curious to note that while amending the Constitution it is not the Parliament who exercises the constituent power. Article 142 of the constitution merely lays down the amending procedure. It does not confer upon the parliament the power to amend the Constitution. The amending power of parliament arises from other provision of the Constitution (Article 65) which gives it the power to make laws i.e., plenary legislative power (Subba Rao CJ in Golak Nath v. State of Punjab AIR 1967 SC 1643).
Rather a plain look on the Preamble of the Constitution will locate the constituent power elsewhere. The Preamble imposes a sacred duty upon the people of Bangladesh to safeguard, protect and defend the constitution and maintain its supremacy ‘as the embodiment of the will of the people of Bangladesh’ (A.B.M Kahirul Haque J in Moon Cinema Case Page 42). The ‘constituent power’ is here with the people of Bangladesh (Chowdhury 114). The Parliament did not and does not give us the Constitution. It is we, the People of Bangladesh who ‘adopt, enact and give to ourselves’ the Constitution. So the constituent power resides exclusively in people. The parliament’s constituent power, if it has any, is merely derivative because ‘all powers in the Republic belong to the people, and their exercise on behalf of the people shall be effected only under, and by the authority of, this Constitution’ (Article 7(1)). The logical conclusion that follows is that amendment made by referendum, being not hit by Article 7 and being in the exercise of constituent power, is not subject to judicial review; whereas amendment made by Parliament in the exercise of derivative power is subject to judicial review.
Thirdly, distinct approach to popular amendment will answer also to the controversy regarding the Twelfth Amendment. The Appellate Division argued that the past amendments altering the basic structures of our constitution provides no grounds for such amendments to be made in future (Para 213). The Twelfth Amendment turned the Presidential form of government into a Prime Ministerial one. The Presidential form of government was a basic structure of the Constitution then. Though the Prime Ministerial from of government was the result of democratic revolution of the three alliances (Islam 407), it would stand void as per Anwar Hossain. But how far it sounds rational to invalidate the Twelfth Amendment?
4.2.1 Addressing the Validity of Article 142 (1A) itself
While advocating the specialized treatment for Article 142 (1A) we should not forget that there is a well founded doubt on the validity of Martial Law Amendment introducing Article 142 (1A) (Islam 394). It was substantiated in Moon Cinema where the High Court Division declared the Martial Law Amendment in Article 142 void (Page 238). A.B.M. Khairul Haque J opened the Pandora’s Box of anfractuous debate (Karzon and Al Faruque 192) observing:
“Addition of clause (1A) was craftily made. In the one hand the President and the Chief Martial Law Administrator was not only merrily making all the amendments in the Constitution of the People’s Republic of Bangladesh according to his own whims and caprices by his order…….... but at the same time, made provision in Article 142 itself in such a manner so that the amended provisions cannot be changed even by the two thirds majority members of the parliament short of a referendum. In short by executive Order of one person, amendment of the Constitution can be made at any time and in any manner but even the two thirds majority of the representative of the people cannot further amend it. We are simply charmed by the sheer hierocracy of the whole process” (Page 199).
The decision is stayed by the Appellate Division on appeal which is pending now. Keeping in mind that Moon Cinema is a matter sub judice, we humbly submit that we cannot altogether disregard the philosophy of Article 142 (1A). One of the main intentions behind clause (1A) was to check constitutional amendments like Fourth Amendment whereby a democratic constitution took an autocratic complexion. The Fourth Amendment is widely accused to destroy the Basic Structure of the Constitution without taking fresh mandate from the people on the new standing of the majority party. Article 142 (1A) was presumably intended to compel the majority party in the Parliament to seek popular verdict before such a drastic change in future. The force and rationale of that philosophy seems not to be very weak.
Moreover, in Moon Cinema the High Court Division’s apathy to the Fourth Amendment is evident. Though it refused to condone the Martial Law amendment of any of the provsions of the original Constitution, the Court was ready to condone the amendments deleting the various provision of the Fourth Amendment (Page 242). In this regard, the position of Article 142 (1A) is interesting. It was not in the original constitution and it did not delete any provision of the Fourth Amendment. But certainly it deleted the scope of any such Fourth Amendment in future without popular mandate. Now the burden of determining the exact constitutional status of Article 142 (1A) is on the Appellate Division. The Apex court may either accept or reject the High Court Division rationale. But it is possible to cure the gangrene by a democratic amendment re enacting the present Article 142 (1A) which is needed also for another purpose discussed below.
5. Delimitation of Basic Structures
Accepting the Judicial Review of parliamentary amendment dos not relieve us of another important attack on Anwar Hossain. It is the issue of there being innumerable and controversial basic structures. In Anwar Hossain Shahabuddin Ahmed J gave a list of eight basic features of the Constitution (Para 377). Mohammad Habibur Rahman J added another one to the list (Para 443). Badrul Haider Chowdhury J found twenty one unique features out which some were basic which he did not identify (Kamal 100). In India more than half of the provisions of the Indian Constitution are declared to be basic and the list is still open (Uddin 31). This never ending and ever expanding list of basic structures is creating nothing but confusion and inconsistent application. Two instances below should suffice to establish the fact.
In the aftermath of the Babri Mosque incident the Indian Supreme Court in S.R. Bommai v. Union of India (1994) 3 SCC 1 justified the dismissal of the BJP led governments in Rajasthan, Madhya Pradesh and Himachal Pradesh on the ground of failure to uphold the ‘secular’ character, which was considered to be a basic feature, of the Indian Constitution and President’s Rule was imposed there. Now, strange result may follow if someone in India approaches the Court for dismissal of a particular government on account of its capitalist policy being opposed to ‘socialism’, another basic feature of the Indian Constitution.
In the cases of Zafar Ali Shah v. General Parvez Musharraf PLD 2000 SC 869 and Wasim Sajjad v. Pakistan PLD 2001 SC 233 the Pakistan Supreme Court conceded the Martial Law Administrator’s power to amend the constitution (Islam 393) as if democratic governance was not a basic structure of the Pakistani Constitution. At the same time it held that the Martial Law Administrator couldn’t destroy the basic structures of the Constitution. How curious an application of basic structure! Does there remain anything basic while a usurper makes the constitution subservient to his will?
So it is necessary to ensure certainty in list of basic structure so that parliament will not be in a fix regarding the scope of amending power (Uddin 31). Presently Article 142 (1A) provides a short list of issues amendment of which requires referendum in addition to a two third majority in the floor. To delimit the infinity of basic structures, Article 142 (1A) of the Constitution may be amended, if we think the present list to be too short, to include some other features like constitutional supremacy (art.7), elected local government (art.59), no taxation without parliamentary approval (art.83), judicial review (art.102), judicial independence (Article 22), independence of the Election Commission (art.119) in list. Doing this will require a referendum. This if done in the form of renovation, will serve two purposes in the same journey. It may solve the validity crisis of Article 142 (1A) as well as confirm that what is basic for a political entity (i.e., the state) should be determined by the political opinion of the people not by the judges. The people will certify that these are the basic structures of the constitution amendment of which would require the Parliament to seek popular approval.
Importantly, this codification shall not foreclose the list of basics for all the time to come. If any new principle emerges in future which might then appear to be ‘basic’ the Legislature along with the Populace shall have the option to add that in the Constitutional list through referendum. This will mitigate the fear of changes in the power equation between the parliament and the judiciary in favour of the latter (Bhanu 110). In regular Parliamentary amendments by two third majority in the House, the Supreme Court shall, if challenged, see whether the particular amendment conforms to the basics enumerated in Article 142 (1A) or not.
6. Conclusion
One of the majority judges in Anwar Hossain, M H Rahman J stood out in marked contrast to the views held by other judges (Kamal 109). To invalidate the 8th Amendment he stressed on its being opposed to the philosophy enshrined in the Preamble. He argued that when the Parliament cannot by itself amend the Preamble, it cannot indirectly amend it by amending the provision of the constitution to impair or destroy the fundamental aim of our society (Para 338). This is a unique feature. The insinuation of M H Rahman J is that so far as the basic provisions like Preamble, Articles 8, 48, 56, and 142 remains intact in the Constitution, there cannot be any amendment contrary to those provisions. If Parliament wishes to amend these, it may do so by seeking popular verdict.
We think this should be an appropriate approach to address legislative madness to temper with constitutional fabric. That is to say that while the Parliament is amending any provision of the constitution, such amendment is subject to judicial scrutiny to ensure its conformity with the basic provisions enumerated in Article 142 (1A). This is the true implication of Article 7 of the Constitution which prime facie speaks of ‘Constitutional Supremacy’ but on the ultimate analysis personifies ‘Supremacy of the People’ when it declares ‘This Constitution is, as the solemn expression of the will of the people, the supreme law of the Republic.’ The Constitution is supreme so far as it expresses the will of the people. All the supremacies - Parliamentary, Judicial or Constitutional – must give way to the Supremacy of the People. Let the people determine the basic structures of the Constitution and let them alter anything which they think no more to be basic. Hence, any amendment effected through referendum must be beyond any sort of judicial scrutiny while amendment passed in the floor of the Parliament must pass the test of constitutionally fixed basic structure.
Bibliography
Bhanu Pratap. “India’s Living Constitution: Ideas, Practices, Controversies.” The inner conflict of constitutionalism: Judicial review and the Basic Structure in Ed. E Sridharan. Delhi: Permanent Black. 2002. 99-148.
Chowdhury, B Haider. Evolution of the Supreme Court. Dhaka: University of Dhaka, 1990.
Hoque Ridwanul. “On coup d' etat, constitutionalism, and the need to break the subtle bondage with alien legal thought: A reply to Omar and Hossain” The Daily Star Law and Our Rights. [Dhaka] 29 Oct. 2005.
Hossain, Zakir and Omar, Imtiaz. “Constitutionalism, parliamentary supremacy, and judicial review: A short rejoinder to Hoque” The Daily Star Law and Our Rights. [Dhaka] 26 Nov. 2005.
Hossain, Zakir, and Omar, Imtiaz. “Coup d' etat, constitution and legal continuity” The Daily Star Law and Our Rights. [Dhaka] 17, 24 Sep. 2005.
Islam, Mahmudul. Constitutional Law of Bangladesh. Dhaka: Mullick Brothers, 2006.
Kamal, Mustafa. Bangladesh Constitution Trends and Issues. Dhaka: University of Dhaka, 1999.
Karzon, Sheikh Hafizur and Al Faruque, Abdullah. “Martial Law Regimes: Critically Situating the Validity of the Fifth and Seventh Amendments.” Bangladesh Journal of Law, 2.2 (1998): 152-192.
Sethi Anuranjan. “Basic Structure Doctrine Some Reflections”. Social Science Research Network. 12 July. 2008
Uddin, Md Moin. 2005: “Debates on Constitutional Amendment and Dilemma of the Doctrine of Basic Structure.” Law Vision. University of Chittagong. 2004-05: 28-31.
* Dr. M Jafar Ullah Talukder is an Assistant Professor, Department of Law, University of Chittagong
** M. Jashim Ali Chowdhury is a Lecturer in the Department of Law, University of Information Technology and Sciences (UITS), Chittagong.
Published in the Daily Star, Law and Our Rights, December 26, 2009; Available Online: http://thedailystar.net/law/2009/12/04/views.htm
