Amendment Rules of the Constitution of Bangladesh

Article 142 of the Constitution, embodying the amendment rules, in its original form provided a general, quasi-rigid procedure for the amendment of ‘any provi­sion’ thereof by a two-thirds majority of Parliament.

142. Notwithstanding anything contained in this Constitution -

(a) any provision thereof may be amended by way of addition, alteration, substitution or repeal by Act of Parliament:

Provided that -

(i) [...];

(ii) no such Bill shall be presented to the President for assent unless it is passed by the votes of not less than two-thirds of the total number of members of Parliament;

(b) when a Bill passed as aforesaid is presented to the President for his assent he shall, within the period of seven days after the Bill is presented to him assent to the Bill, and if he fails so to do he shall be deemed to have assented to it on the expiration of that period.

Before embarking upon the politics of fixing and re-fixing the fundamental cores of the Constitution through amendments, it is pertinent to have a view of the trajectory of the amendment rules. Article 142 was first amended in 1973, not to curtail but rather to increase Parliament’s amendment power regarding the funda­mental rights provisions. Article 26(2) of the Constitution provided that the State ‘shall not make any law inconsistent with any [fundamental rights] provisions.’ This left open the question of whether a constitutional amendment could validly enact such a law incompatible with fundamental rights. In this context, the 2nd amendment amended both articles 142 and 26, making it clear that the above limitation on the legislative power would not apply to a constitutional amendment.^[796]

A normatively substantial change to the amendment rules came in 1978 when the first military government introduced a two-tiered amendment procedure. This was achieved, ironically, by amending the Constitution extra-constitutionally.^[797] This made certain fundamental provisions of the Constitution subject to a more demanding procedure of public ratification through referendum.^[798] It was provided that any amendment of the preamble and article 8, which together contained the constitutional fundamentals, and a few other articles including article 142 would have to be endorsed by a referendum.

In the early months of post-1990 democratic transition, the above-protected provisions became the subject matter of a political contestation between the gov­ernment and then the opposition party, the Awami League, which was against the retention of referendum as part of the amending mechanism.^[799] Ultimately, however, the 12th amendment of 1991, which returned the country to a parliamentary form of democracy, retained the two-tiered amendment procedure but shortened the list of harder-to-amend provisions.^[800] Protected provisions that were amendable after an affirming referendum were: preamble that contained the four fundamental cores of the Constitution, article 8 (the normative status of the four (amended) fundamental principles), article 56 (parliamentary nature of government), and article 142 (amendment rules). On the other hand, the provisions that were now taken off from the referendum requirement were: the mode of electing the President (article 48), the tenure of Cabinet ministers (article 58), and the legislative procedure (article 80).

Twenty years later, this two-tiered amendment procedure has been done away with in 2011 via the 15th amendment, which controversially amended the amendment rule without the support of a referendum.^[801] Although the 15th amendment omitted the referendum mechanism for the amendment of certain protected provisions, it inserted an even more rigorous limitation on Parliament’s amending power by introducing an eternity clause, which is the subject of analyses below.

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