Amendment Power in Bangladesh:
Arguments For the Revival of Constitutional Referendum
M. Jashim Ali Chowdhury and Nirmal Kumar Saha
Published in the Indian Journal of Constitutional Law Vol 9 (2020), 38-61
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Indian J. Const. L., Vol 9 (2020)
Page 38
AMENDMENT POWER IN BANGLADESH: ARGUMENTS FOR THE
REVIVAL OF CONSTITUTIONAL REFERENDUM
M.
Jashim Ali Chowdhury and Nirmal Kumar Saha*
The recent constitutional trend in divided societies and relatively
unstable democracies has seen an increased use of perpetuity clauses as a tool
to foster constitutional stability. Propriety and effectiveness of making certain
part or parts of constitution totally unamendable either by insertion of some
perpetuity clauses or by judicial articulation of perpetual norms (basic
structure) has been doubted by many. The Supreme Court of Bangladesh tested the
way of judicial articulation of certain perpetual norms as back as 1989. The
2011 amendment to the constitution of Bangladesh has included a very widely
framed perpetuity clause and, also, a very vague reference to the basic
structure doctrine. This article
considers the fragilities of these two parallel tracks to unamendability and
shows how a median line could be drawn by installing a system of popular
referendum in the constitution amendment process. Considering the qualitative
questions over Referendum as a tool of deliberative democracy, the paper would
argue for a reformulated version of the referendum system that was introduced
in Bangladesh in 1979 but scrapped by the amendment of 2011.
Keywords: Constituent Power, Amendment Power, Basic Structure, Unamendability,
Referendum, Judicial Review
Indian J. Const. L., Vol 9 (2020)
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1. Introduction
A typical
constitutional supremacy clause characterizes the constitution as the ‘highest
law’ of a country. Again, pitched against the concept of popular sovereignty,
constitutions often occupy a lower designation, as ‘higher law’.[1]
Constitutional supremacy clauses however accommodate a slippery concept of the
peoples’ sovereignty. A claim of supremacy here rests on constitution’s
embodiment of the will of the people. Seen this way, a constitution’s supremacy
remains subject to the ‘highest’ will of the people. The biggest problem with
this approach is that ‘will of the people’ is a theoretical concept not capable
of perfect subtraction into a legal concept. It is hard to pinpoint exactly
when the ‘will of the people’ changes and a “constitutional moment”[2]
knocks on the door. Added to this is the near impossibility to discern what
exactly the ‘will’ itself is. Hence, a more accommodating alternative might be
to take the constitution as the ‘legal highest’ and leave the will of the
people – the ‘political highest’ - aside.
Yet this
would not solve the problem altogether. The ‘legal’ and ‘political’ highest,
are not norms in isolation. They constantly interact, influence and saturate
each other. Instability in one destabilizes the other. Therefore, possible
instability in the highest ‘law’ needs be checked by taming instability in the peoples’
highest ‘will’. Constitutions try to do this by defining the amendment process
with the best possible precision. Amendment clauses give constitutions the
height necessary to remain above the nitty-gritty of ‘presentist’[3]
tendencies of the peoples’ will. They also provide necessary leeway for intra
and inter-generational adaptability of the constitutional texts and principles.[4]
Amendment
power and process is laced with complexity. Constitutional provisions may be ‘comparatively
hard’, ‘particularly hard’, or even ‘impossible’ to amend. Many constitutions
choose comparatively hard amendment
processes and require a qualified majority of two-thirds or three-fourths in
the legislature for a constitutional amendment. Some constitutions, the United
States’ being the most prominent, chose a particularly
hard process of amendment and require some additional steps like
ratification and concurrent action by institutions apart the legislature.
Though no constitution so far has claimed strict
unamendability for all of its contents, some jurisdictions have attempted
such strategy for parts of their constitutions by introducing eternity or
perpetuity clauses and, as Roznai shows, the trend is growing in this direction.[5]
This trend of
Indian J. Const. L., Vol 9 (2020)
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legislative
entrenchments through perpetual or eternity clauses – which Richard Albert
calls “codified unamendability”[6]
is an addition to the judicially articulated “interpretative unamendability”[7]
under the so-called doctrine of basic structure.
Both the eternity
clause and the basic structure doctrine involve controversies. With the court, a
facially “counter-majoritarian”[8]
institution, pressing for perpetuity of an unidentified set of basics,
democracy’s basic arraignment of representation, institution, power and
principles face a new challenge. Basic structure denies political forces and the people the scope to anticipate and react to in the judicial interpretation of constitutional text and principles. Inconsistent
interpretation leads to an ever-fluctuating list of unamendable basic
structures. Codified eternity clauses, on the other hand, create a highly
problematic dead hand rule – ideals of the foregone generation binding the present
generation - within the constitutional landscape.
This paper aims to address the dilemmas of the
eternity clause and the basic structure doctrines in the context of Bangladesh.
The 2011 constitutional amendment in Bangladesh that purports to accommodate
both the legislative articulation of unamendable constitutional basics and the judicial
articulation of basic structure unamendability forms the principal case study
of this paper. Part II presents a general introduction to the Bangladeshi constitutional
regime regarding amendment power and process. Part III offers a brief analysis
of the doctrinal issues associated with the eternity clauses and the basic
structure doctrine. Part IV deals with the problems of basic structure doctrine
in Bangladesh with occasional references to other south Asian jurisdictions,
particularly the India and Pakistan. Part V argues for qualified entrenchment
of constitutional basic structure provisions subject to popular participation
in the process through referendum. Part VI considers some of the confusions
associated with the concept of referendum and argues for modified reintroduction
of the referendum clause that was introduced in Bangladesh in 1979 but discontinued
in 2011.
2. Amendment
Power in Bangladesh: Trichotomy of Basic Structure, Unamendability and Referendum
The
Parliament of Bangladesh is given both plenary legislative power[9]
and the power of constitutional amendment.[10]
The original constitution of 1972 contained no limitation whatever on the
parliament’s power of amendment. Amendment could be made through a Bill passed
by two-thirds majority of the members of Parliament. Article 142 being the sole
repository of amendment
Indian J. Const. L., Vol 9 (2020)
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power, there
could be no extra-constitutional route to amendment.[11]
The military regimes of 1975-79 and 1982-1986 however, frequently took the
extra-constitutional routes.
A series of
martial law orders, regulations and proclamations amended the constitution as
per the sweet will of the martial law administrators. Thereafter all those
‘amendments’ were placed as two packages before second and third parliaments
which approved the packages though the Fifth and Seventh Amendments respectively.[12]
In the Fifth Amendment, a system of referendum was installed within the
amendment process.[13]
As per the new formula, amendments in the Preamble or some other articles consolidating
the presidential system vis-a-vis the Prime Minister and cabinet and the
parliament,[14] would
require referendum in addition to a two-thirds majority in parliament. Though
it was not told expressly, the newly installed referendum system treated some
articles, some of which were controversial[15],
as more ‘fundamental’ than the other articles of the constitution.
Later, the Fifth
Amendment was invalidated by the Supreme Court of Bangladesh. The High Court
Division judgement in the Fifth Amendment case specifically dealt with the referendum
clause:
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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.[16] (Emphasis supplied)
It seems that the High Court Division was questioning
the hierocratic manner in which the referendum clause was inserted and
entrenched in the constitution, i.e., through a military chief’s orders
and proclamations etc. While the High Court Division did not test the
substantive concept of referendum as such, the Appellate Division judgment
on the Fifth Amendment also did not deal with the referendum clause
specifically. It did however approve the High Court Division’s nullification of
the referendum clause.[17] The Fifteenth Amendment Act
of 2011, which followed the Supreme Court verdict in the Fifth Amendment case, deleted
the referendum clause and revived the original format of Article 142 i.e.,
amendment through two-thirds majority only.[18]
The
Fifteenth Amendment, however created another problem of its own. By inserting a
new Article 7B in the constitution, it made a large part of the constitution
totally unamendable. Prior to that, the doctrine of basic structure was explicitly
embraced by the Supreme Court of Bangladesh in its 1989 Anwar Hossain Chowdhury
decision.[19] The
doctrine claims that certain provisions and principles constitute the basic
structures of the constitution and are therefore
Indian J. Const. L., Vol 9 (2020)
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unamendable. Now,
the Fifteenth Amendment has added a large number of specific articles in the
unamendability list. It also included other unspecified ‘basic structures’ to
list of unamendability.
Article 7B is titled as “Basic provisions of
the Constitution are not amendable”. It has made the Preamble, all articles
of Part I, II and III (subject to the emergency provisions), Article 150 and “all
the provisions of articles relating to the basic structures of the Constitution”
unamendable by way of insertion, modification, substitution, repeal or by any
other means. The vague reference to “all provisions
of articles relating to basic structure of the constitution” in article 7B
seems problematic. While entrenchment of core constitutional values through eternity
clause like this one is not totally unknown in global constitutional literature,
there is an obvious danger in unnecessarily widening the breadth of unamendability.
Common understanding of eternity clause jurisprudence suggests that only the
higher values of constitutional order – the “constitutional cores”[20]
– should be entrenched. Extensive listing of unamendable articles is likely to
constraint the peoples’ primary constituent power.[21]
Seen in this light, the Fifteenth Amendment of 2011 is “extremely wide”[22]
and susceptible to future disregard.
As will be
argued subsequently in this paper, the discarded system of referendum, though having
a problematic origin, if retained through necessary modification, could have
solved most of the problems associated with the eternity clause and basic structure
doctrines.
3. Understanding
Amendment Power vis-à-vis the Unamendable Clauses
There are debates as to whether amendment power is a ‘constituent’
power or a ‘constituted’ one.[23] Constituent power is the
highest political sovereignty that works as an extra-legal grundnorm whose
legitimacy is taken for granted.[24] Constituted power on the
other hand is secondary and derivative. It draws its authority from the
constituent power and must conform to it. Amendment power has been
inconsistently described as ‘constituent power’ and/or ‘constituted power’. Holmes
and Sunstein write that amendment power:
… inhabits a twilight zone between authorizing and
authorized powers. ... The amending power is simultaneously framing and framed,
licensing and licensed, original and derived, superior and inferior to
Indian
J. Const. L., Vol 9 (2020)
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44
the constitution.[25]
Sieyes
claimed that constituent power is unlimited, unrestricted and free from all
prior bondages and is always subject to reclamation.[26]
Doyle argues that constituent
power should be seen as a capacity (power) rather than an entity (bearer of
power).[27] Entity based understanding of constituent power insists that only
one entity - the people, can exercise it.[28]
Capacity based understanding, on the other hand, would look for whether an
entity (revolutionary force, legislature or military for example) can
successfully create a new constitution by breaching the existing one. If the
new constitution so brought forth is perceived by the people as serving their
interest, there should be no reason to deny that the concerned entity has
exercised its constituent power. On this count, exercise of amendment power may
qualify as a constituent power in suitable cases e.g., where the legislature drastically
alters its own sphere of competence.[29]
A contrary
view of the amendment power, however, describes it as a constituted power.
According to this view, the constituent power is laid to rest once its job of constituting
the original constitution is over. Thereafter, every entity works under the constituted
system.[30]
Since the legislature’s amendment power is part of the system as constituted,
it cannot claim an authority beyond its boundary. On this basis, Schmitt argues
that an amendment cannot eliminate the constitution nor can it annihilate the constitution
by stripping off its essential identities.[31]
Tribe also echoes the tune that amendments may not alter fundamental values of
the constitution to such an extent that may tantamount to regime change or
revolution or create inconsistency within the regime.[32]Amar
also recognizes ‘a seemingly paradoxical
exception’ to
amendability and claims that the ‘inner logic’ of the constitution calls for
entrenchment of certain [U.S. first amendment, for example] values.[33]
Entrenchments of constitutional norms through eternity clauses (explicit limits
on amendment power) or basic structure doctrines (implicit limits on amendment
power) or transnational norms (supra-constitutional limits on amendment power)
are therefore not devoid of reasoning.[34]
One of the contemporary
thinkers on the unamendability doctrine, Roznai however takes a conciliatory
approach and tries to find out a middle ground in the debate. Roznai perceives
the amendment power as a constituent one subject to a further classification
within – Primary
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Constituent
(constitution making) and Secondary Constituent (constitution amending) Power.[35]
Primary constituent power is not only original but also a principal one. He
relies on Max Radin’s idea of real and minor sovereignty. Real sovereignty is
exercised by revolutionary authority and ‘minor or lesser sovereignty’ is
exercised by the constituted authority.[36]
Amendment power, though exercised by a constituted authority, is ‘almost
sovereign’ and stands above all other functions of governance.[37]
It is ‘almost’ sovereign because its authority is derivative, not original.[38]
Working further on this, Roznai asserts a ‘principal-agent’ relationship
between the primary constituent power and secondary constituent (amendment)
power. Amendment is more than constituted power and less than original
constituent power. It is a delegated power to be exercised by a special
constitutional agent e.g., parliament. Its power is neither unlimited nor
severely limited.[39]
As regards the unamendable eternal clauses, Roznai applies his delegation
theory in the following terms:
Unamendability
limits the delegated amendment power, which is the secondary constituent power,
but it cannot block the primary constituent power from its ability to amend
even the basic principles of the constitutional order.[40]
The people
would reserve their primary constituent power and use it de novo[41]
when the secondary
constituent authority (legislature) attempts a change
‘contrary to their fundamental values’.[42]
Seen in this light, the secondary constituent authority is debarred from
unilaterally entrenching some of provisions of its liking. Here again,
involvement of the primary constituent authority (the people) is inevitable.
If this
position of Roznai is considered from a practical perspective, there should be
a place of public participation in the amendment process through devices like
referendum which we argue for in this paper. Our argument for participatory
amendment process can also be justified in terms of Joel Colón-Ríos’s “five concepts of constituent power”.[43]
First, Rios’ ideas locate the constituent power in a Westminster styled
‘sovereign’ parliament. Second, the constituent power may be delegated from the
Crown to the legislatures (e.g., the colonial legislatures in the wake of the
decolonization) who would reconstitute the system a fresh. Third, the constituent
power may lie with the peoples’ right to revolt and alter the existing system.
Fourth, within a participatory democracy framework, the constituent power may
mean the power of the people to instruct their representatives who would remain
bound by the instruction. Fifth, the constituent power may be channeled through
the fundamental law in such a way as to institutionalize the “normally extra-legal- exercise of the people’s constitution-making power”[44].
While Rios’ first two senses of Westminster parliamentary sovereignty and
colonial deregulation fall outside the scope of this
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investigation,
the third concept of revolutionary constituent power remain is essentially
extra-legal. Rios’ fourth and fifth concepts allocate the “true constituent
power”[45]
in the people and projects the institutional mechanisms e.g., the
legislature as formal and legal proxies of popular sovereignty.[46]
As will be seen in Part V of this paper, our argument for referendum based participatory
amendment process draws on popular sovereignty and representative
responsibilities of the legislature.
Roznai’s classification
of primary-secondary constituent power also runs in line with the Indian and
Bangladeshi Supreme Courts’ approaches to amendment power as well. The Kesavananda
Bharati v. State of Kerala[47]
and Anwar Hossain Chowdhury v. Bangladesh[48] courts have
perceived amendment power as a power limited by essential norms of the
constitution i.e., the basic structures of the constitution. Both the
judgments distinguish between the adoption of a new constitution and the
‘derivative power’ of amending the existing one and 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. The Indian Supreme Court
in Keshavananada Bharati
observed:
The word ‘amendment’ postulates that the old Constitution survives
without loss of its identity despite the change and continues even though it
has been subjected to alteration. [S]ubversion or destruction cannot be
described as amendment of the Constitution as contemplated by Article 368 [of
the Indian Constitution].[49]
Similarly, all
the four Appellate Division judges, including the dissenting judge, sitting in Anwar
Hossain Chowdhury v Bangladesh have
agreed that amendment power is a limited power, though they varied on the
question whether amendment power is a constituent power or not. Justice Badrul
Haider Chowdhury apparently refused the constitutional amendment any higher
status in terms of its ‘constituent’ character. Relying on the constitutional
supremacy clause in Article 7(1) of Bangladesh constitution, Justice Chowdhury
would see the constituent power, if there be any, belonging only to the
‘people’:
All powers in the republic belong to the people. This is a concept
of Sovereignty of the people. Sovereignty lies with the people not with
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executive, legislature or judiciary -
all these three are creations of the Constitution itself.[50]
(Emphasis supplied)
While finding
that amendment power was not a constituent power, Justice Chowdhury did not
specifically say whether it is a constituted power instead. Amendment power is elevated
from the ordinary law-making power in so far as article 142 of the constitution
‘enables’ it to bring changes in, short of swallowing up, the constitution:
[Article 142] merely confers enabling power for amendment but by
interpretative decision that clause cannot be given the status for swallowing
up the constitutional fabric.[51]
Similarly,
Justice M H Rahman would not articulate the amendment power as either
constituent or constituted one. He would rather see the amendment power as one
limited by the constitutional fabric e.g., the rule of law:
I am, however, striking down the amendment not on the ground of
uncertainties or irreconcilability of the existing provisions with the amended
provisions as such, but on the ground of the amendment's irreconcilability with
the rule of law, as envisaged in the preamble, and, in furtherance of which,
Articles 27, 31,32,44,94 to 116A were particularly incorporated in the
Constitution.[52]
Compared to
Justice Chowdhury and Justice Rahman, Justice Shahabuddin Ahmed’s view on
amendment power is more explicit. Justice Shahabuddin was reluctant to accept
the amendment power as a constituent power in its primary or original sense. He
would rather accept it as derivative constituent power at best:
As to the 'constituent power', that is power to make a Constitution,
it belongs to the people alone. It is the original power. It is doubtful
whether it can be vested in the Parliament, though opinions differ. People
after making a Constitution give the Parliament power to amend it in exercising
its legislative power strictly following certain special procedures. ………. Even
if the 'constituent power' is vested in the Parliament the power is a
derivative one and the mere fact that an amendment has been made in
exercise of the derivative constituent power will not automatically make the
amendment immune from challenge.[53]
(Emphasis supplied)
Justice
Badrul Haider Chowdhury’s endorsement of amendment power as derivative
constituent power was picked up by the dissenting judge Justice ATM Afzal.
Justice Afzal rejected the argument of one of the lawyers who asked the court
to see the parliament’s amendment power at par with its constituted power
of law making:
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It become[s] difficult to agree with him having regard to the views
expressed by judges and [J]urists as to the position and quality of a law which
is enacted under the constituent power of a Parliament even though it
is a derivative power and [also] the position of Constitutional law, in
relation to ordinary law made under ordinary legislative process.[54]
(Emphasis supplied)
Concluding
the discussion of this part, it appears reasonable to say that the basic
structure judgments of both the Indian and Bangladeshi Supreme Courts see
amendment powers as secondary or derivative constituent power which is
higher than the legislature’s constituted
power of ordinary law making but lower than the peoples’ original
constituent power of repealing or replacing the constitution or altering
its essential basic characteristics.
4. Problems
of the Basic Structure Doctrine
The doctrine
of basic structure drags the judiciary into the constitution amendment process.
The judiciaries in South Asia claimed a responsibility to protect the
constitutional edifice from the peril of an invincible parliamentary
super-majority. The argument is that certain structural pillars of the constitution
cannot be dislodged by parliament while amending it.[55]
Though Keshavananda Bharati is identified as the progenitor of the
doctrine, it started shaping up in an earlier case named Golak Nath v. State
of Punjab.[56]
In Golok Nath the Indian Supreme Court held that fundamental rights
occupy a transcendental position in the Indian constitution and are therefore unamendable.[57]
Keshavananda elaborated the argument towards all other provisions
forming ‘basic structure’ of the constitution. Justice Khanna held:
If the Basic Structure is retained, the old Constitution would be
considered to be continuing even though other provisions have undergone change.
On the contrary if the Basic Structure is changed, mere retention of some articles
of the existing Constitution would not warrant a conclusion that the existing
Constitution continues or survives.[58]
Golak Nath and Keshavananda Baharati were
decided at a time when Indira Gandhi, then Prime Minister of India, was “using
emergency powers, jailing opposition leaders, curtailing property rights of the
elites and moving the country in a sharply socialist direction.”[59]
Hence the public complacency with the activist zeal of the Indian Supreme Court
was understandable. The
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parliament
however reacted sharply and appointed a parliamentary committee to study the
new doctrine. It came out with a proposal for an amendment in the constitution
that would confirm that parliament’s amendment power was unrestrained.[60]
Though the 42nd amendment to that affect was passed, it was later
held unconstitutional by the Supreme Court using the same basic structure
doctrine.[61]
The Supreme
Court of Bangladesh adopted the doctrine in 1989 in Anwar Hossain Chowdhury.[62]
It invalidated the Eighth Amendment of 1988 to the constitution which sought to
create some out-of-capital circuit benches of the High Court Division of the
Supreme Court. The Court was of the opinion that unitary character of the
republic was a basic structure of the constitution. Therefore, there could be
only one Supreme Court with its sole site in the capital. Popular reaction to
the decision was massively favorable.[63]
The invalidation of a constitutional amendment passed by a military led
government, was seen by all as a victory for judicial independence and
activism. Problematic aspects of the doctrine, however, did not get much
attention.[64] Unlike
the Indian legislature, the parliament of Bangladesh did not question the
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Page 50
limitedness
of its amendment power. The government reprinted the constitution by omitting
the invalidated eighth amendment. Though the
opportune moments of political adversity helped both Keshavananda Bharati and
Anwar Hossain become a “cause celebre”[65] in the constitutional jurisprudence
of both the countries, confusions started appearing soon.
First and
foremost, the judiciary got an apparently unlimited authority in defining basic
structure which makes the concept an unpredictable and consequently bad. It further
provided judges with leeway to introduce their own ideological leanings into
constitutional discourse. The fluidity of basic structures allowed the judges to
pick and choose provisions that appeared ‘basic’ and strike down whatever did not.
The Indian
Supreme Court in a 1988 case held that the secular character of the Union of
India was a basic structure. The case, S.R. Bommai v. Union of India[66]
concerned the dismissal by the central government of four state governments led
by the Hinduism based Bharatiya Janata Party (BJP). The
action was taken in the context of a communal riot following the destruction of
a fourteenth century mosque by the Hindu extremists. The Supreme Court
upheld the action of the central government on the ground of the BJP led state
governments’ failure to uphold the ‘secular’ character of the Republic. Now, if
someone in India approaches the Court today for dismissal of a particular
government on account of its capitalist policies that contradicts ‘socialism’
which happens to be another fundamental principle of the Indian constitution[67],
the Court might end up in something completely inconsumable. Capitalism and
market economy being firmly rooted in Indian economy, a socialism-oriented
verdict may be doctrinally right but politically futile.
The Pakistani
Supreme Court also made a mess with the doctrine in two of its early ‘Pervez Musharraf’
cases: Zafar Ali Shah v. General Parvez Musharraf[68]
and Wasim Sajjad v. Pakistan.[69]
These related to challenges to the unconstitutional usurpation of power and whimsical
changes in the constitution by the then military chief General Parvez Musharraf.
Pakistan has a checkered history of military forces capturing the state power
and the court succumbing to the dictators. However, the judiciary has been
known to reverse this position once the military rulers are toppled and
political government is established.[70]
Though the Pakistani Supreme Court did not endorse the
Indian J. Const. L., Vol 9 (2020)
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basic
structure doctrine as such till then, Zafar Ali Shah case upheld the
usurpation of power by General Parvez Musharraf and his martial law
proclamation order, subject to a condition that Pervez Musharraf could not
change the ‘salient features’ of Pakistan constitution.[71]
It appears as if democratic governance was not a salient feature of Pakistani constitution
in 1999. Could anything more ‘basic’ remain while an unconstitutional usurper made
the constitution itself subservient to his sweet will?
Later, the Pakistani
Supreme Court bypassed an invitation to endorse basic structure doctrine in Nadeem Ahmed v. Federation of Pakistan.[72]
In the 2015 decision of District Bar Association, Rawalpindi v Federation of Pakistan, [73] it acknowledged some implied limits on
amendment power, noting that “certain features mentioned in the Preamble of
the Constitution cannot be abrogated”.[74]
However, it ended up in cherry picking its judicial review power vis-a‑vis parliamentary
amendment of the constitution[75]
and shredding other basics like the peoples’ fundamental right to fair trial
vis-a-vis the martial law courts.[76]
Examples of
cherry picking ‘basic structures’ are also recorded in Bangladesh. The fifth and
sixteenth amendment judgments of the Supreme Court of Bangladesh, so far as
they relate to appointment and removal of supreme court judges, are criticized
for aggrandizing the independence of judiciary over the principle of separation
of power and judicial accountability.[77]
Similarly, the thirteenth amendment judgement is criticized for pitching the ‘non-representative’
character of caretaker governmental irreconcilably against the people’s right
to free fair and election on the first place.[78]
Secondly,
constitution being a document of fundamental importance, it appears extremely
difficult, if not impossible, to classify several provisions of the
constitution as basic and some others as peripheral. Hence the list of ‘basic
structures’ is an ever-expanding one. In Anwar
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Hossain Chowdhury itself, Justice Shahabuddin Ahmed gave a list of seven basic
features.[79]
Justice Mohammad Habibur Rahman added another one to the list.[80]
Justice Badrul Haider Chowdhury felt that there were twenty-one ‘unique
features’ in the constitution out of which ‘some’ were basic.[81]
Thirdly, the
judicially imported immutability in the constitution was apparently against the
intention of the framers of Indian, Bangladeshi and Pakistani constitutions.
The framers intended an amendable constitution by all means. Nothing more than
a qualified majority in the floor was required by the 1950 constitution of
India,[82]
1972 constitution of Bangladesh[83]
and 1973 constitution of Pakistan.[84]
No substantive limits whatever was placed on the amendment power of parliament.[85]
Moreover, it was never explained how the court could assume for itself a
constituent power which was not vested in it. In
District Bar Association,
Rawalpindi v Federation of Pakistan The Pakistani supreme
court quite extra-ordinarily
held that the judicial review of constitutional amendment is an inherent
privilege of the judiciary but at the same time simply overlooked the fact that
the Pakistani constitution clearly bars such judicial
review on “on any ground whatsoever”.[86]
Fourthly, the
institutional consideration is even more problematic. The doctrine of ‘basic
structure’ arguably enables the judiciary to have a final say over the
parliamentary amendment power. In one sense, the Bangladeshi version of the
doctrine was more extreme than the Indian one. While the Indian constitution
could be amended by the parliament alone, the Bangladeshi constitution, on the
other hand, could be amended either by parliament acting in itself or by
parliament acting in conjunction with popular referendum. The Supreme Court of
Bangladesh in 1989 did not note this distinctive process of amendment. It
simply held that basic structure could not be destroyed. Had the Eighth Amendment
been passed through a popular referendum, could the Supreme Court would have
placed itself above the people – the ultimate sovereign in the Republic and
declare the amendment invalid?
Fifthly, it
is questionable as to whether a mere likelihood of parliamentary abuse of
amendment power may serve as an excuse for introducing judicial review.[87]
The Sixteenth Amendment judgement in Bangladesh shows that the Supreme Court may,
in fact, venture this path and invalidate an amendment on a suspicion that
judges may be harassed by the parliamentarians sitting over their appointment
and removal.[88] What
happens, if the judiciary, as
Indian J. Const. L., Vol 9 (2020)
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an
institution, transgresses its limit and starts abusing the power?[89]
How could the legislature and populace check counter-majoritarian body acting
in unison? Vulnerabilities of democracies like Bangladesh to their own
representatives[90] does
not seem to offer a strong justification of ‘basic structure’ in the way it is preached
by their judiciaries. These and other considerations have led even some
pro-basic structure scholars to concede the ‘minimal legitimacy’[91]
of the doctrine and argue for scarce and limited application
of the doctrine.[92]
5. A Place
for Constitutional Referendum
As the
discussion so far suggests, the doctrine of basic structure also faces charges
of both judicial usurpation and uncertainty over its contents. This part will
show that the unamendability doctrine also is full of uncertainties on the
reach and breadth of the legislature’s amendment power. Both the devices,
unless very delicately articulated, are likely to clog the inter-generational
adaptability of constitutions. It is argued that installation of a referendum requirement
within the amendment process might answer many of the concerns involved with
these doctrines.
5.1. The
Institutional Issues
As suggested
earlier, the eternity clause (article 7B) of Bangladesh offers almost no
solution to institutional question posed above. It purports to entrench the
core constitutional provisions by taking them away from the clutch of a super
majority in parliament. Yet it leaves open a scope for the judiciary to meddle in
the process. In contrast, the referendum provision under the Fifth Amendment of
1979 had answers to these institutional conflicts. A similar system of combined
legislative and popular action works well in Japan where a two-thirds majority
of the House of Representatives and House of Councilors of the National Diet
initiates and passes an amendment. It is then submitted to the people in a
referendum or special election. People ratify or reject the amendment by a
simple majority.[93] Bangladesh’s
Fifth Amendment mechanism involved a similar process except that the referendum
would apply only to the amendments of selected provisions.
This
provision, if kept in operation, would have solved the institutional questions
in two different ways. First, the four corners of the legislature’s amendment
power would have been drawn more clearly. Second, much of the democratic deficit
of judicial review would have been addressed. For the reasons discussed below,
mere parliamentary amendments effected through two-thirds majority could be
judicially reviewed, while amendments effected through the referendum may be
put outside the ambit of judicial review.
Indian J. Const. L., Vol 9 (2020)
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5.2. Demarcation
of the Amendment Power
As discussed earlier, much of the debate on the nature and limits of amendment power has been narrowed down by Roznai who accepted it as a constituent power but conditioned it with a theory of delegation and a principal-agent relationship between the original constituent power i.e., the revolutionary authority or the people and the secondary constituent power, i.e., the parliament. Roznai’s amendment theories may be shaped into a Triple Floor Model of constituent and constituted power shown in the diagram below:
Now, if we
consider the structure of the constitution of Bangladesh, it appears that the constitution
recognizes a meta-distinction between constituent power of amendment and
constituted power of legislation. It treats the secondary or derivative constituent
power of amendment differently from the plenary legislative power. The power of
amendment in Article 142 is not articulated in the Part V of the constitution that
deals with composition, plenary legislative powers (Article 65) and functions
of the Parliament. Thus, the distinction between constituent and constituted
power being agreed upon, we get the lowest floor and the upper floor demarcated.
Now, Article
142 uncoupled with a referendum clause will remain uninformed of the possible
distinction between the top two floors of the proposed Triple Floor Model. If
the amendment power is sweepingly claimed as a constituent power, as the
government lawyers in the eighth amendment case did,[94]
the ground reality would become unexplainable. The Supreme Court of Bangladesh
has time and again refused the claim of sole and pervasive ‘constituent’
amendment power. Like Anwar Hossain Chowdhury, a series of precedents have
held that the amendment power is ‘inherently’ limited.[95]
The Supreme Court did not offer any explanation as to how and from where these
inherent limitations flow. All it offered is a justification based on the
constitutional supremacy clause.[96]
According to this view, unlimited power of amendment would
Indian J. Const. L., Vol 9 (2020)
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turn
Bangladesh into a British like parliamentary supremacy which was never
contemplated by the framers. It appears that such a literal reading of the constitutional
supremacy clause would suppress the exercise of the peoples’ sovereign
authority in deciding the nation’s political course. Constitutions are supreme
because they reflect the will of the people. If the popular will cannot be
injected in the constitution through amendments, since there is no other way of
doing this, the Supreme Court and its basic structure doctrine would stand
between the people and a change they are looking for. This would lead the Republic
towards a judicial supremacy or ‘government by the court’.[97]
Definitely, that was also was not contemplated by the framers.
Given the
situation, if we introduce a referendum in the amendment process, amendments get
separated into two distinct classes. Amendments of fundamental or basic
principles made through referendum would directly involve the original or
primary constituent authority – the people.[98]
Referendum-based amendments would possess the necessary authority to make all
sorts of fundamental changes in the constitution including permanent
entrenchments of basic structures. On the other hand, amendments made through a
two-thirds majority would mark a secondary or derivative constituent power and
be subject to the principal-client relationship with the original constituent
power. Now, the upper two ceilings of the Triple Floor Model become clear.
5.3. Boundaries
of Judicial Review
Institutional
issues with judicial reviews are more complex. 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”.[99]
The typical arguments disputing the judicial review of constitutional amendment
are twofold. First, judiciary should protect the Constitution as it is and
check that ordinary laws do not violate the Constitution as it is. It should
not define how the Constitution should or should not be.[100]
If the court ventures this path, it would amount to a judicial supremacy or
government by the court. Secondly, constitutional amendments being matters of
political choice, the judiciary should remain disinterested in them.[101]
Indian J. Const. L., Vol 9 (2020)
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The Supreme
Court, however, has rejected these arguments. In the context of the volatility
of Bangladesh politics, it is argued that the notion of constitutional
supremacy requires its extra‑ordinary entrenchment. The requirement of two
thirds majority is just one of the many other ways to ensure this. The
judiciary as a “guardian of the constitution”[102]
should have a say in this process of constitutional amendment. Some believe
that this argument is extremely relevant in the intensely politicized
environment of Bangladesh. Once elected, it has been argued that the parliamentarians
do not acquire a blanket power, to do everything they wish until they are
de-elected in the next election.[103]
Just as Ely seeks judicial intervention to rescue the “discreet and insular
minority” that is often systematically sidelined by the political process,[104]
the Supreme Court of Bangladesh here seems to have a role in rescuing the constitution
from viciousness of politics. Absent judicial involvement in the process, the
constitution runs the risk of being a plaything in the hands of the party
ridden parliament leading towards an unguarded parliamentary supremacy.[105]
The next
argument for judicial review of constitutional amendments seeks to refute the
political question argument. Amendments do have political motives. But, is this
also not the case with almost every law passed by the parliament? Does
law-making by a particular ruling party not reflect its political ideology and
convenience? So, if political question is not evoked to refute judicial review
of ordinary laws, why should it be preached for the constitutional amendments?
With a concept of limited government in place, none can transgress this limit
by hiding under a cloak of political question.[106]
The Appellate Division of the Bangladesh Supreme Court had earlier rejected the
political question doctrine straightforwardly when it remarked:
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.[107]
In fact,
judicial review of constitutional amendments has already become an accepted
norm in Bangladesh. The Supreme Court has adjudged the validity of the Fifth
Amendment in Bangladesh Italian Marble Works Ltd,[108]
Seventh Amendment in Siddik Ahmed Chowdhury v. Bangladesh,[109] part of
the Eighth Amendment in Anwar Hossain Chowdhury v. Bangladesh,[110]
Indian J. Const. L., Vol 9 (2020)
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and Thirteenth Amendment in Abdul Mannan Khan v Bangladesh,[111]
Tenth Amendment in Dr. Ahmed Hossain v.
Bangladesh[112]
and Fazle Rabbi v. Election Commission,[113]
part of the Fourteenth Amendment in Farida Akter v. Bangladesh[114]
and lastly, the Sixteenth Amendment in Bangladesh and Others v Advocate
Asaduzzaman Sidddiqui.[115]
Though most of these judicial review decisions have been hailed, the courts in
Fifth, Seventh, Thirteenth and Sixteenth amendment cases, involving fundamental
and policy changes in the constitution, have been accused of adventurously
meddling into the political process.[116]
While a
constitutional supremacy-based argument is offered and taken for granted in all
of the above exercises, the charges of democratic deficit and
counter-majoritarian usurpation by the court never received serious attention
from the Court. Judicial non-consideration of an issue, however, should not
mean that it is dead. The democratic deficit in judicial decision-making is
bound to be an issue of constant relevance and an initiative towards perpetual
entrenchment of constitutional provisions cannot ignore the phenomenon. While
advocates of Basic Structure like Krishnaswamy
invite us to consider the ‘overall moral, political and
sociological legitimacy’[117]
of basic structure doctrine - which he claims the doctrine has attained over
the years of Indian legal history,[118]
he concedes that ‘sociological legitimacy’ of the doctrine would flow from its potential to enhance “the degree of political participation in
radical expansive constitutional change by requiring a higher level of
deliberative decision-making to support such constitutional amendment”.[119] It
appears that, in a clientelist political system like Bangladesh,[120] a
brute parliamentary majority is less likely to deliberate an amendment more
rigorously in anticipation of possible judicial nullification of such amendment.
Instead, the Triple Floor Model proposed in this paper
would be more within the socio-political reality here. Amendments made by
referendum, being the exercise of original constituent power, stay above
judicial review.[121]
On the other hand, amendments made by parliament being the exercise of
derivative constituent power, the courts
Indian J. Const. L., Vol 9 (2020)
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must see
whether or not the principal-agent trusteeship has been respected. This
formulation would explain and justify the previous judgments of Bangladesh Supreme
Court except the ones on the Fifth, Seventh and Thirteenth amendments.
5.4. Delimiting
the breadth of ‘basic structures’
While there
is no denying of the existence of certain fundamental and basic principles in
the constitution, a certainty about the list of such basics will solve the
problem of ambiguity. The legislature and judiciary may also be relieved of the
duty of second guessing the basics.[122]
The textual entrenchment of specific basic structures through referendum would
possess “more institutional legitimacy than would be the case for implicit
substantive constraints announced by the judiciary.”[123]
As mentioned in Part II of this paper, the Fifteenth Amendment of 2011 provides
a textually settled list of basic structures but keeps it open by inserting a
vague reference to other basic structures at the end. Revival of the referendum
clause in Article 142 and omission of the broad eternity clause in article 7B
would solve the dilemma significantly.
5.5. Elimination
of the ‘Dead Hand’
Installation
of the system of referendum would serve another important purpose. Both the
entrenched unamendable rule and a judicially articulated doctrine of basic
structure have a common problem of dead hand and perpetual fixation.
Constitutions then become a “stale and hollow”[124]
instrument. Now, if the task of enlisting the basic structures is left to the
political opinion of the people expressed through referendum and not to the
legislators and judges, it can probably offer a better and practical solution
to the dead hand problem. The initial entrenchment list shall not foreclose the
list of basics. If any new basic structure emerges in future, a legislative
amendment along with a popular referendum shall add that new provision in the
entrenchment list. Any basic structure provision becoming redundant later on
will likewise be deleted from the list.
While
politics remain the most influential arbiter of public opinion, the characteristic
restlessness of Bangladeshi politics remains a concern here as well. The public
opinion may be tailored through populist regimes to propose and successfully
pass frequent referendums. The common-sense trend of politics, however, does
not lend much support for the proposition that fundamental changes in the
constitution through popular amendment will be as frequent as the regular
changes effected through parliamentary two-thirds majority-based amendment
process.[125]
6. Problems
of Referendum
Indian J. Const. L., Vol 9 (2020)
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Referendum
being pressed as viable alternative in the eternity clause and basic structure
dilemma, the question for consideration now is - to what extent and how would referendums
deliver in terms of democratic legitimacy? While referendum has been a very
useful contemporary tool of deliberative democracy in modern day constitutional
processes, there are questions about the quality of the process followed, the
actual deliberation that follows it, and level of understanding the citizens
have on the critical constitutional issues involved. The referendum system that
was devised for Bangladesh in 1979 was a post legislative formality where a
question would be put to universal suffrage as to whether people would agree to
the parliamentary amendment made or not. Roznai has rightly termed it as “a
mere acclamation – a soccer-stadium democracy”.[126]
Understandably,
the aye or nay type participation that was introduced by the military rulers in
1979 was a manifestation of the acclamatory constitution-making technique
followed by the military dictators of erstwhile undivided Pakistan.[127]
While the referendum clause in the fifth amendment was about constitutional
changes, Bangladesh had experienced two referenda arranged for the purpose of
legitimizing the military coup of General Ziaur Rahman (1977) and General
Ershad (1985). With exceptionally high voter turn-out, above 85 percent in both
cases, those opposition less referenda resulted in more than 90 percent support
for the military rulers.[128]
It has been a lived experience of the Asian continent that referendum is used
by the rogue rulers as a manipulative tool more convenient than a competitive
election.[129] Keeping Bangladesh’s consistent problem with
electioneering in mind,[130]
any proposal for electoral participation of the people in the democratic
process must be well articulated beyond a one-time participation over a
craftily devised referendum question. A meaningful participation of the people would
therefore require an engagement before, during and after the formal amendment
process.[131] In
this scenario, the 1979 formula of post legislative referendum could be seen as
one of the, and not the only, important instrument of public participation in
the process. For the amendment of constitutionally entrenched basic structures,
such as those agreed upon in the twelfth amendment or even some found in the
current article 7B eternity clause, special mechanisms like calling of
constitutional convention may supplement the post legislative referendum method.
Recommendation for introduction of such supplementary devices within the
amendment process may be justified in terms of Albert’s “escalating
structure” framework whereby the deadlocks of codified unamendability is
sought to be overcome by ensuring an escalated rigidity in the amendment
process.[132]
Indian J. Const. L., Vol 9 (2020)
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Within the
referendum process itself, Tierney has argued for introduction of plural modes
and multiple stages of deliberation within the referendum process so that
referendums do not fail to foster meaningful participation.[133]
Tierney seeks to see the referendum
as comprising a series of three stages (initiation, issue framing and
deliberation generated at the campaign stage) and envisaging two theatres for
deliberation (micro level and macro level).
A ‘deliberative referendum’ could be deliberated at the micro level (expert
level) by checking the populist reasoning through considered reasoning of
constitutional experts and jurists in bodies specially designated towards that
end.[134] A
special consultative authority given to the Swiss Federal Assembly in
initiating referendum might be a good example to look at.[135]
Again at the macro level, the desired level of deliberation might be achieved
through rules like fixation of a minimum lowest percentage of voter turn-out in
the referendum beyond the support of merely 50 per cent plus 1 of those who
turn out to vote.[136]
As regards the generation of informed and enlightened public deliberation,
there might be several ways like vesting the electoral responsibility in an independent
commission, introducing public information campaigns for better informing the
voters about the options and issues at hand. The 2011 experiment of online
public drafting of the referendum question, whereby an earlier draft of the
referendum question was put in an online consultation process, in Iceland might
provide a good example to look at.[137]
7. Conclusion
The
constitutional supremacy clause of the Constitution of Bangladesh is, in
essence, a popular sovereignty clause. It makes the Constitution a “solemn expression of the will of the people”
and “the supreme law of the Republic.” It is therefore quite logical that all
the sovereign organs - Parliamentary, Judicial or Executive – must give way to
the supremacy of the people. The Referendum-based entrenchment suggested in
this paper is better served to give expression to the will of the people. There
is a need to guard constitutional coherence from both the day to day scratches
of political rivalry, hence judicial review of constitutional amendments cannot
be rejected outright. Again, the need for inter-generational adaptability of the
foundational pillars of constitution requires that both codified and
interpretative unamendability to be discouraged. The system of referendum has
the potential of achieving all these together. While the referendum has some
problems of its own, it is suggested that it might be accompanied by other
devices, such as within a broader ‘escalating structure’ of amendment process.
Indian J. Const. L., Vol 9 (2020)
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Interestingly,
support for the referendum-based amendment process can be found in Anwar
Hossain Chowdhury itself. Mohmmad Habibur Rahman J, one of the occurring
judges in the case, stood in a marked contrast to the other judges.[138]
He agreed in the result of the case but offered a unique reasoning. He did not
claim a permanent immutability for the so-called basic structures but rather
asserted that the Parliament cannot ‘by itself impair or destroy the
fundamental aim of our society.’[139]
This impliedly leads us to the system of referendum.
After all, ‘fixation’ of constitutional norms will not guarantee its ultimate survival
unless it accommodates a breathing space for public opinion and sentiment and
intergenerational adaptability. Quite opposite to the popular truism, a constitution’s
survival has been empirically linked more to its flexibility than to its rigidity.[140]
* PhD Candidate, King’s College London,
University of London, UK and Professor, Department of Law, University of
Chittagong, Bangladesh. The authors would like to express their gratitude to
the anonymous reviewer(s) of the IJCL whose comments contributed in substantial
refinement and improvement of the arguments made in the paper.
[1] J.
M, Balkin, Living Originalism, 59 (1st ed., 2011).
[2] B.
Ackerman, We the People, Volume 2: Transformations, 17-26 (1st
ed., 1998).
[3] J.
Rubenfeld, The Moment and the Millennium,
66 George Washington Law Review 1085, 1089 (1998). Jed Rubenfield explained
Thomas Jefferson’s thesis on living constitutionalism - “the earth belongs to
the living” - as making “the priority of the present into an axiom of
self-government, such that self-government would have to be conceived as governance
by present popular will and governance under old laws would have to be
regarded as antithetical to political freedom.” [Emphasis supplied].
[4] C.
J. Friedrich, Constitutional Government
and Democracy theory and practice in Europe and America, 137-38 (4th
ed., 1974).
[5] Y.
Roznai, Unconstitutional
Constitutional Amendments: A Study of the Nature and Limits of Constitutional
Amendment Powers, Thesis
submitted to the Department of Law of the London School of Economics for the
degree of Doctor of Philosophy, 27 (2014), available at:
http://etheses.lse.ac.uk/915/, last seen on 08/06/2020. (As Roznai’s
groundbreaking dissertation notes, “between 1789 and 1944, only 17% of world
constitutions enacted in this period included unamendable provisions (52 out of
306), whereas between 1945 and 1988, 27% of world constitutions enacted in
those years included such provisions (78 out of 286). Out of the constitutions
which were enacted between 1989 and 2013 already more than half (53%) included
unamendable provisions (76 out of 143). In total, out of 735 examined
constitutions, 206 constitutions (28%) include or included unamendable
provisions”).
[6] R.
Albert, Constitutional Amendments: Making, Breaking, and Changing
Constitutions, 140 (1st ed., 2019).
[7] Ibid, at 149.
[8] A.
M. Bickel, The Least Dangerous Branch: The Supreme Court at the Bar of
Politics, 16-18 (2nd ed., 1986).
[9] Art.
65, the Constitution of Bangladesh (Subject to the Constitution, the legislative
power of the Republic is vested in Parliament).
[10] Art. 142, the Constitution of Bangladesh (Parliament is
empowered to amend the constitution by of addition, alteration, substitution or
repeal subject to the procedure and conditions laid down in this Article).
[11] See R. Albert, Constitutional Amendment by Stealth, 60 McGill Law Journal 673, 678 (2015). Amendment by stealth
has been defined as ‘an informal, obscure and irregular method of
constitutional amendment that by-passes the process of public deliberation
through formal, transparent and predictable procedures designed to express the
informed aggregated choices of political, popular and institutional actors.’. Though there is global awareness of a
process of ‘amendment by stealth’ through different informal
politico-administrative processes short of formal amendment, its implication
for Bangladesh remains unexplored or under researched so far. ‘Amendment by
stealth’ therefore falls beyond the ambit of this paper which deals with formal
and express amendments regulated by article 142 and judicially reviewed within
the basic structure framework.
[12] M.
J. A. Chowdhury, An Introduction to the Constitutional Law of Bangladesh,
76-86 (1st ed., 2010).
[13] Clause
1A was first added to Article 142 by the Second Proclamation (Fifteenth
Amendment) Order, 1978 (Second Proclamation Order no IV of 1978).
[14] Second
Schedule of the Second Proclamation (Fifteenth Amendment) Order, 1978 (Second
Proclamation Order No. IV of 1978 enlisted the provisions that were to be
brought into the ambit of the referendum clause. The enlisted provisions were
the Preamble, Arts. 8 (status of fundamental principles of state policies), 48
(president), 56 (prime minister), 58 (tenure of the prime minister and
cabinet), 80 (president’s control over legislative process), 92A (president’s
power to dissolve a parliament which fails to approve the budget proposed by the
government) and 142 itself. Later the Constitution (Twelfth Amendment) Act 1991
(Act No. XXVIII of 1991) amended the referendum list. Under the 1991 amendment,
the Preamble, articles 8, 48, 56 and 142 would require referendum. With a
change of the presidential system into a parliamentary one, articles 58, 80 and
92A relating to presidential powers became redundant and hence got omitted from
the list.
[15] The 1978 list of
referendum articles included the provisions like presidential authority to
dissolve a parliament failing to approve the government’s budget proposal,
presidential superiority vis-à-vis the prime minister and the cabinet and also
the distortion in the preamble (which now introduced a state religion, deleted
the secularism, distorted the Bangalee nationalism and limited the meaning of
socialism – all of the four founding principles of the original constitution).
The 1978 list was controversial because it apparently sought to entrench the
presidential system of government as well as other politico-legal philosophies
of the military regime capturing power after the killing of the Father of the
Nation Bangabandhu Sheikh Mujibur Rahman and acting in direct defiance of the
founding principles of the liberation war of 1971 – secularism, socialism, Bangalee
nationalism and representative democracy in the form of parliamentary
government. See S. Lition, The Depth of 5th Amendment,
The Daily Star (22/07/2010), available at https://www.thedailystar.net/news-detail-147758 , last seen on 09/06/2020.
[16] Bangladesh Italian Marble
Works Ltd v. Bangladesh, 14
(2006) BLT (Spl) (HCD) 1, 199 (High Court Division of Bangladesh Supreme
Court). See M. J. A. Chowdhury, Negotiating
article 142(1)(A) for Basic Structure, The Daily Star 12 (Dhaka, 06/03/2010).
[17] Khandkar Delware Hossain v. Bangladesh Italian Marble
Works Ltd, Civil Leave to Appeal Petition 1044-45/2009, 182; Full text of the judgment available at http://www.dwatch-bd.org/5th%20Amendment.pdf , last seen 09/06/2020.
(As it appears, the High Court Division’s declaration of
unconstitutionality of the referendum clause was based on the hierocracy
of the process of its insertion. Apparently, the substantive concept
of referendum as such was not tested for constitutionality. Interestingly,
the Constitution (Twelfth Amendment) Act 1991 (Act No. XVIII of 1991), passed
after the country’s democratic transition in 1991 and with unanimous
bi-partisan support, amended the referendum clause and thereby substantively
endorsed the system of referendum as such. Given the renewed
entrenchment of the referendum clause through the 1991 amendment, it may be
asked whether the High Court Division could judge it in 2005 on the ground of a
procedural hierocracy of 1978 (For a brief history of the Twelfth
Amendment See M. A. Hakim & A. S. Hoque, Governmental Change and
Constitutional Amendments in Bangladesh, 2(2) South Asian Survey 255,
268-69 (1995).
[18] Like
the question over the High Court Division’s invalidation of the referendum
clause, it may also be asked whether the parliament could remove the referendum
clause in 2011 by a mere two-thirds majority while the twelfth amendment of
1991 required a further referendum to amend the referendum clause. While these
fundamental issues require elaborate theoretical and doctrinal exposition,
scope of the present article confines us to the effect of the fifth amendment
judgement and the fifteenth amendment act rather than process and rationality
of those.
[19] Anwar Hossain Chowdhury v. Bangladesh, (1989) 18 CLC (AD) 1.
[20] R. Hoque, An
unamendable constitution? Eternal Provisions in the Constitution of Bangladesh:
A Constitution Once and for All?, 195, 222 in An Unamendable Constitution? Unamendability in
Constitutional Democracies (Richard Albert
and Bertil Emrah Oder., 1st ed., 2018).
[21] M.
Abdelaal, Entrenchment illusion: the curious case of
Egypt’s constitutional entrenchment clause, 16(2) Chicago-Kent Journal of
International and Comparative Law 1 (2016).
[22] Supra 20, at 218.
[23] Carl Schmitt’s Constitutional Theory, 71-75, 141-46
(Jeffrey Seitzer, 2008); , 151,
in The Political Construction of the State ( and , 2017); Sieyes, What is the
Third Estate?, 124 (1963); C. Pfenninger, Reclaiming Sovereignty: Constituted and
Constituent Power in Political Theory, E-International Relations, available
at https://www.e-ir.info/2015/01/12/reclaiming-sovereignty-constituted-and-constituent-power-in-political-theory/CHRISTIAN PFENNINGER, last seen on 09/06/2020.
[24] J.
Raz, Kelsen’s Theory of the Basic Norm,
19(1) The American Journal of Jurisprudence 94, 95 (1974).
[25] S.
Holmes, and C.R. Sunstein, The Politics of Constitutional Revision in
Eastern Europe, 275, 276 in Responding to Imperfection: The Theory and
Practice of Constitutional Amendment (Sanford Levinson, 1995).
[27] O. Doyel, Populist
Constitutionalism and constituent power, 20(2) German Law Journal 161,
166-71 (2019).
[28] Ibid,
at 169.
[29] Ibid, at 170.
[30] U.
K. Preuss, The Exercise of Constituent
Power in Central and Eastern Europe, 220 in The Paradox Of
Constitutionalism: Constituent Power And Constitutional Form (M. Loughlin
and N. Walker., 1st ed., 2007).
[31] C. Schmitt,
Legality and Legitimacy 150, 151 (1st ed., 2004).
[32] H L Tribe, A
Constitution We Are Amending: In Defense of a Restrained Judicial Role, 97
Harvard Law Review, 433, 441 (1983).
[33] A. R. Amar Philadelphia
Revisited: Amending the Constitution Outside, 55 University of Chicago Law
Review 1043, 1072 (1988).
[34] Y.
Roznai, Unconstitutional Constitutional Amendments: The Limits of Amendment
Powers 124-26 (1st
ed., 2017).
[35] Ibid,
at 122.
[36] M. Radin, The Intermittent Sovereign, 39
Yale Law Journal 514, 525 (1930).
[37] Ibid, at 526.
[38] Supra 26, at 15-18.
[39] Ibid, at.19-20.
[40] Supra
34, at 124-26.
[41] Ibid,
at 128.
[42] Ibid,
at 134.
[43] J. Colón-Ríos, Five
conceptions of constituent power, Law Quarterly Review 306 (2014).
[44] Ibid, at 308.
[45] Ibid, at 333.
[46] At this juncture, it is useful
to refer to Japanese scholar Yasuo Hasebe who argues against dragging the
narrative of constituent power in the discussion of constitution making and
amendment. Hasebe argues that constitutions and amendments would thrive if
their outcome are acceptable to the people and in conformity with university
principles of political morality, not because those are allegedly enacted by a
particular generation of people exercising their constituent power (See Y. Hasebe, On the Dispensability of
the Concept of Constituent Power, 3 Indian Journal of Constitutional Law,
39, 46, 49, 50 (2009)). This paper however deals with the procedural and
institutional issues, rather than Hasebe’s substantive considerations, of
constitutional amendment which makes it imperative to locate the power and
authority of amendment to its precision.
[47] Kesavananda Bharati v. State of Kerala,
(1973) 4 SCC 225.
[48] Supra
19.
[49] Kesavananda Bharati v. State of Kerala quoted in S. K. Chakraborty, Constitutional Amendment in India: An Analytical Reconsideration of the Doctrine of ‘Basic Structure’, 11 Social Science Research Network Electronic Journal, 1, 9 (2011), available at http://ssrn.com/abstract=1745439, last seen on 28/02/2019.
[50] Supra 19, at para 166 (Justice Badrul Haider Chowdhury).
[51] Ibid, at para 184 (Justice Badrul Haider Chowdhury).
[52] Ibid, at para 523 (Justice M. H. Rahman).
[53] Ibid, at para 381 (Justice Shahabuddin Ahmed).
[54] Ibid, at para 594 (Justice A.T.M. Afzal).
[55] J.
U. Talukder and M. J. A. Chowdhury, Determining
the Province of Judicial Review: A Re-evaluation of Basic Structure of the
Constitution of Bangladesh, 2(1) Metropolitan University Journal 161, 163
(2008).
[56] Golak Nath v. State of Punjab, AIR
1967 SC 1643.
[57] Supra
49, at 4-5.
[58] Ibid, at 8.
[59] E.
Katz, On Amending Constitutions: The Legality
and Legitimacy of Constitutional Entrenchment, 29 Columbia Journal of Law
and Social Problems 251, 269 (1996).
[60] Supra 49, at 14-18.
[63] K. Ahmed, The Supreme
Court’s Power of Judicial Review in Bangladesh: A Critical Evaluation
presented in the Seminar titled ‘Celebrate the 40th Anniversary of the
Constitution of Bangladesh’ on 20 October 2012. available at: http://dx.doi.org/10.2139/ssrn.2595364, accessed on 26/06/2020.
[64] For
a critical evaluation of the Anwar
Hossain Chowdhury v. Bangladesh see R. Chowdhury, The Doctrine of Basic Structure in Bangladesh: From Calfpath to Matryoshka Dolls, 14 Bangladesh Journal of Law 33 (2014); S. Khan, Leviathan
and the Supreme Court: An Essay on the 'Basic Structure' Doctrine, 2
Stamford Journal of Law, 89 (2011).
[65] Zakir
Hossain and Imtiaz Omar, Coup d' etat, constitution and legal continuity, The Daily Star, 8 (Dhaka,
17/09/2005 and 24/09/2005).
[66] S.R. Bonmai v. Union of India, (1994)
3 SCC 1.
[67] St. Xavier College v. State of Gujarat, AIR
1974 SC 1389. See M. Nelson, Indian Basic Structure
Jurisprudence in the Islamic Republic of Pakistan: Reconfiguring the
Constitutional Politics of Religion, 13 Asian Journal of Comparative Law,
333 (2018).
[68] Zafar Ali Shah v. General Parvez Musharraf 2000 PLD SC
869.
[69] Wasim Sajjad v. Pakistan 2001 PLD SC 233.
[70] State
v. Dosso, 11 DLR (SC) 1 (validating President Eskander Mirza’s martial law
proclamation in 1956); Asma Jilani v. The Government of Punjab, PLD 1972 SC 139
(Invalidating President Yahya Khan’s capture of power after his fall in 1972);
Begum Nusrat Bhutto v. Chief of Army Staff, 1977 PLD (SC) 657; Malik Ghulam
Jilani v. Province of Punjab, PLD 1979 Lahore 564 (validating President Zia Ul
Hoque’s martial law and presidency in mid 1970s); Zafar Ali Shah v. General
Parvez Musharraf, PLD 2000 SC 869 (validating President Parvez Musharraf’s
usurpation of power in 1999); Pakistan
Lawyer’s Forum v. Federation of Pakistan, PLD 2005 SC 71 (validating the
seventeenth amendment and his continuance in both presidency and
military chief); Iftikhar Muhammad Chaudhry v. Pervez Musharraf, PLD 2010
SC 61 (invalidating Pervez Musharraf’s suspension and harassment of Chief
Justice Iftikhar Muhammad in March 2007 in the face widespread public protest);
Tikka Iqbal Muhammad Khan v. General Pervez Musharraf, PLD 2008 SC 178 (again
validating General Musharraf’s second declaration of emergency and suspension
of constitution in November 2007 under a servile Chief Justice Hameed Dogar); lastly,
Sindh High Court Bar Association v. Federation of Pakistan, PLD 2009 SC 879 (decided
after the demise of Musharraf presidency, invalidating his November 2007
emergency proclamation and condemning the military coup). For details see T. A. Qureshi, State of Emergency: General Pervez Musharraf's Executive Assault on
Judicial Independence in Pakistan,
35(2) North Carolina Journal of International Law and Commercial Regulation,
485 (2009).
[71] S. A. Ghias, Miscarriage of Chief Justice: Judicial Power and the Legal Complex in Pakistan under Musharraf, 35(4) Law & Social Inquiry, 985 (2010).
[72] Nadeem Ahmad v. Federation of Pakistan, PLD 2010 SC 1165 avoided declaring the eighteenth amendment (judicial appointment commission and parliamentary appointment committee) unconstitutional on the basis of basic structure of independence of judiciary. The amendment was rather was referred to the legislature with some recommendations. Parliament later passed the 19th amendment (See S. Ijaz, Judicial Appointments in Pakistan: Coming Full Circle, 1(1) LUMS Law Journal, 86 (2014)).
[73] District Bar Association,
Rawalpindi v. Federation of Pakistan
PLD 2015 SC 401.
[74] Ibid, at 867
[75] Ibid, at 858.
[76] For a case comment on District
Bar Association Rawalpindi see W. Mir, Saying Not What the Constitution
is … But What It Should be: Comment on the Judgment on the 18th and 21st
Amendments to the Constitution, 2 LUMS Law Journal 64, 69 (2015).
[77] M J. A. Chowdhury and N. K. Saha, Advocate
Asaduzzaman Siddiqui v. Bangladesh: Bangladesh’s Dilemma with Judges’
Impeachment, 3 Comparative Constitutional and Administrative Law Quarterly, 7 (2017).
[78] R. Hoque, Judicialization of Politics in Bangladesh:
Pragmatism, Legitimacy and Consequences, 261, 287 in Unstable
Constitutionalism (Mark V.
Tushnet and Madhav Khosla, 2015).
[79] Supra 19, at para 416 (Justice Shahabuddin Ahmed enlisted
Supremacy of the Constitution as the solemn expression of the people,
Democracy, Republican Government, Unitary State, Separation of Powers,
Independence of the Judiciary and Fundamental Rights as basic structures of
Bangladesh constitution).
[80] Ibid, at para 496 (Justice Habibur Rahman added The Preamble to
the list).
[81] Ibid,
at para 292.
[82] Art. 368, the
Constitution of India requires either simple majority or special majority in
the floor of the central parliament (Lok Sabha) or special majority in the
central parliament coupled with ratification in required number of state
legislatures.
[83] Art. 142, Bangladesh Constitution requires a
two-thirds majority in the floor of the House.
[84] Art. 239, Pakistan
Constitution vested a shared responsibility on each House of the central
legislature (subject to two-thirds majority requirement in both the houses) and
the provincial legislatures (simple majority or two-thirds majority in suitable
cases).
[85] Supra 49, at 14-15.
[86] Pakistan Constitution, Art. 239(5).
[87] Supra 59, at 267-68.
[88] Supra 77.
[89] R.
Stith, Unconstitutional Constitutional
Amendments: The extraordinary power of Nepal’s Supreme Court, 11 American University Journal of International Law
and Policy, 47, 73 (1996).
[90] A. Shetty, Basic Structure Doctrine: Some Reflections, 41 available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=835165,
last seen on 10/07/2020.
[91] S. Krishnaswamy, Democracy and Constitutionalism
in India: A Study of the Basic
Structure Doctrine, xxxii (1st ed., 2009).
[92] R.
Dixon and D. Landau, Transnational Constitutionalism and a Limited Doctrine
of Unconstitutional Constitutional Amendment, 13(3) International Journal of Constitutional Law, 606, 623 (2015).
[93] Supra 59, at 257.
[94] Supra 19, at para 553-54 (argument by Barrister M. Amir Ul Islam and Barrister Syed Ishtiaq Ahmed).
[95] Ibid, at para 603 (Justice A.T.M. Afzal).
[96] Article
7 of the Constitution of Bangladesh embodies the constitutional supremacy
clause in following terms: ‘(1) 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.(2) This Constitution is, as
the solemn expression of the will of the people, the supreme law of the
Republic, and if any other law is inconsistent with this Constitution and other
law shall, to the extent of the inconsistency, be void.’
[97] Imtiaz
Omar and Zakir Hossain, Constitutionalism,
parliamentary supremacy, and judicial review: A short rejoinder to Hoque, The Daily Star 12 (Dhaka, 26/11/2005).
[98] While commenting on Article 7B of Bangladesh
constitution, Roaznai argues: “Limitations upon the delegated secondary
constituent power can solely be imposed by the higher authority from which it
is derived – the primary constituent power. Unamendable amendments may lose
their validity when they face a conflicting valid norm that was formulated by
the same authority. Accordingly, provisions created by the amendment power
could subsequently be amended by the amendment power itself. Because both
amendments are issued by a similar hierarchical authority, their conflict is
governed by the principle of lex posterior derogat priori. Therefore, I
claimed that an ‘implicit limit’ exists, according to which a constitutional
amendment cannot establish its own unamendability. Accordingly, two possible
solutions exist: attempting to get the approval of the the people ‟ to such a
constitutional amendment, for example, through a national referendum (after its
formal enactment in Parliament), which would provide a legitimation elevator to
such unamendability in a “constitutional moment”. Alternatively, and perhaps
more practically, such an amendment can simply be regarded not as constitutive
but as declarative of an already limited legal power” (See Interview of Yaniv Roznai,
2 Indian Journal of Constitutional and Administrative Law, 129, 132-3 (2018)).
[99] M. Kamal, Bangladesh Constitution: Trends and Issues, 139 (1st
ed., 1994).
[100] Supra
55, at 161, 165.
[101] Supra 97.
[102] Secretary of Ministry of Finance v. Masder Hossain, (2000) 20 BLD (AD)
104 (Appellate Division of Bangladesh Supreme Court).
[103] R.
Hoque, 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 11 (Dhaka, 29/10/2005).
[104] G.
R. Stone, Constitutional Law, 524 (2nd ed., 2009), quoting J.
H. Ely, Democracy and Distrust (1st ed., 1980).
[105] Ibid at 525.
[106] M.
Islam, Constitutional Law of Bangladesh, 456 (4th ed., 2012).
[107] Special
Reference No 1 of 1995 (1995)
47 DLR (AD) 111 (Appellate Division of Bangladesh Supreme Court).
[108] Bangladesh Italian Marble Works Ltd v.
Bangladesh 14 (2006) BLT (Spl) (HCD) 1 (High Court Division of
Bangladesh Supreme Court) and Khandker
Delwar v. Bangladesh Italian MW 15 MLR (AD) 1 (Appellate Division of
Bangladesh Supreme Court).
[109] Writ
Petition No 696 of 2010 before the High Court Division of Bangladesh Supreme
Court. Full Text of the Judgment available at www.supremecourt.gov.bd, last
seen on 19/04/2018.
[110] Supra 19, at para
78.
[111] Abdul Mannan Khan v. Bangladesh 64 DLR
(AD)(2012) 1007 (Appellate Division of Bangladesh
Supreme Court); Mashihur Rahman v. Bangladesh (1997)
17 BLD (HCD) 55 (High Court Division of Bangladesh Supreme Court) and M Saleem Ullah v. Bangladesh (2005)
57 DLR (HCD) 171 (High Court Division of Bangladesh Supreme Court).
[112] Dr. Ahmed Hossain v. Bangladesh (1992) 44 DLR (AD) 109
(Appellate Division of Bangladesh Supreme Court).
[113] Fazle Rabbi v. Election Commission (1992) 44 DLR
(HCD) 14 (High Court Division of Bangladesh Supreme Court).
[114] Farida Akter v. Bangladesh (2006) 11
MLR (AD) 237 (Appellate Division of Bangladesh Supreme Court).
[115] Bangladesh and others v.
Advocate Asaduzzaman Siddqui (2017) CLR (Spl) 1 (High Court Division of
Bangladesh Supreme Court); Advocate Asaduzzaman Siddiqui v. Bangladesh and others,
2012, 41 CLC (HCD) (High Court Division of Bangladesh Supreme Court).
[116] R.
Hoque, Can the Court Invalidate an Original Provision of the Constitution?,
2(2) University of Asia Pacific Journal of Law & Policy, 13 (2016).
[117] Supra 91, at 165.
[118] Ibid, at 223-227.
[119] Ibid, at 228.
[120] M.
M. Islam, The Toxic Politics of Bangladesh: A Bipolar Competitive
Neopatrimonial State?, 21(2) Asian Journal of Political Science, 148-168
(2013).
[121] Supra
34, at 175. “[T]he more an amendment process contains
inclusive and deliberative democratic mechanisms, the more closely it resembles
‘the people’s’ primary constituent power. Congruently, since primary
constituent power is by its nature unlimited, popular secondary powers, which
present a fuller – while still limited – presence of the people’s sovereignty,
should be allowed greater latitude when it comes to constitutional changes.”
[122] P.B.
Mehta, India’s Living Constitution:
Ideas, Practices and Controversies, 105, 110 in The inner conflict of
constitutionalism: Judicial review and the Basic Structure (E. Sridharan, 1st
ed., 2002).
[123] M
Galston, Theocracy in America: Should
Core First Amendment Values Be Permanent?, 37 Hastings Constitutional Law
Quarterly, 65, 121 (2009).
[124] Shamima Sultana Seema v. Bangladesh (2005) 57 DLR (HCD) 201 (High Court Division of the Supreme Court of
Bangladesh), para 108 (Justice
A.B.M. Khairul Huq).
[125] In
this regard, Professor Bruce Ackerman’s thesis on ‘fundamental moments of
constitutional change’ in the U.S. context might offer an interesting insight
to the proposition that overwhelming popular consensus is infrequent and hard
to come by (See B. Ackerman, We the
People: Volume 1: Foundations, 40-50 (1st ed., 1991)).
[126] Interview of Yaniv Roznai, 2 Indian
Journal of Constitutional and Administrative Law, 129, 133 (2018).
[127] M
Jashim Ali Chowdhury, Pre-emptive(!) hartal:
Ill-legal if not illegal, The Daily Star 12 (Dhaka, 29/05/2010).
[128] T. B. Smith, Referendum Politics in Asia, 26(7)
Asian Survey, 793 (1986).
[129] M.
Rashiduzzaman, Bangladesh in 1977: Dilemmas of the Military Rulers, 18(2)
Asian Survey, 126 (1978); S. Ali and S. Kamaluddin, Bangladesh:
A Margin of Surprise, 128 Far Eastern Economic Review, 20
(1985).
[130] N.
Ahmed, Non-Party Caretaker
Governments and Parliamentary Elections in Bangladesh:
Panacea or Pandora’s Box?; 11(1) South Asian Survey, 49 (2004); A. S.
Hoque and M. A. Hakim, Elections in Bangladesh: Tools of Legitimacy, 19(4)
Asian Affairs: An American Review, 248 (1993); M. J. Ali Chowdhury, Elections in Democratic
Bangladesh, in Unstable
Constitutionalism, 192 (Mark
V. Tushnet and Madhav Khosla, 2015).
[131] Y. Roznai, “We the People”, “Oui, the People”, and the
Collective Body: Perceptions of Constituent Power, 295-316 in Comparative
Constitutional Theory Research Handbooks
in Comparative Constitutional Law series
().
[132] Supra 6, at 201-202.
[133] S.
Tierney, Constitutional Referendums: The Theory and Practice of Republican
Deliberation, 185-225 (1st
ed., 2012).
[134] Ibid,
at 226-259.
[135] Art. 139(5), the Swiss Constitution (As per the
art. 139(5), the Federal Assembly has the power to react to any popular
initiative for referendum by issuing a recommendation or a counter proposal
over the issue at hand).
[136] Supra
133, at 260-283.
[137] H. L. Kong, Deliberative Constitutional Amendments,
41 Queen's Law Journal,105, 142 (2015).
[138] Supra
99, at 109.
[139] Supra 19, at para 496.
[140] Z.
Elkins, T. Ginsburg and J. Melton, The Endurance of National Constitutions, 99-103 (1st ed., 2009).
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