Bangladesh’s Eternal Clauses:[875] a Constitution Once and for All?

The basic structure doctrine or the concept of unamendable constitutional provi­sions has been entrenched in article 7B of the Constitution through the 15th amendment that in effect sought to remedy the consequences of the judicial invalidation of 5th and 7th amendments.

The Awami League, which was in power at the time of the 5th and 7th amendment decisions, had throughout been against military usurpation of state power and the subversion of the four core principles of the Constitution. In the 5th Amendment Case, in particular, the Appellate Division made a policy suggestion that parliament might make law to criminalize coups or extra-constitutional usurpations of power.^[877] In the wake of this new constitutional development, and given the high status of the top court’s policy advice, the Awami League gov­ernment seemingly found a legitimizing ground from where to proceed toward enacting the 15th amendment. The Amendment reinstated, albeit in a somewhat different form, the four founding values and enacted a provision against extra-constitutional assumption of state power.^[878] Arguably concerned with the stability of these significant changes, Parliament also entrenched an unamendability rule.

Set in the above context of the political and judicial development of the idea of unamendable constitutional provisions, the following Section analyses the validity of Bangladesh’s eternity clause in the light of the concept of popular sovereignty and judicial role vis-a-vis constitutional amendments.

5.1 The Unwieldy Scope of the Broad Eternity Clause

It is appropriate at this juncture to turn to the content of article 7B, which makes ‘basic provisions’ of the Constitution unamendable in the following terms:

7B. Notwithstanding anything contained in article 142 of the Constitution, the preamble, all articles of Part I, all articles of Part II, subject to the provisions of Part IXA all articles of Part III, and the provisions of articles relating to the basic structures of the Constitution including article 150 of Part XI shall not be amendable by way of insertion, modification, substitution, repeal or by any other means. (Emphasis added).

If the wordings of the above article are broken down, it will appear that fol­lowing are the eternal or entrenched provisions:

(i) the preamble (which includes the four founding values and other basic concepts of constitutionalism);

(ii) all articles of Part I (which [Articles 1 to 7B] contains provisions relating to the Republican character of the state, state religion, state language, concept of constitutional supremacy and the concept of unamendability of basic provisions);

(iii) all articles of Part II (which [Articles 8 to 25] provides for fundamental principles of state policy);

(iv) all articles of Part III (which [Articles 26 to 47A] entrenches fundamental rights provisions) (subject to the provisions of Part IXA);^[879]

(v) the provisions of articles relating to the basic structures of the Constitution and

(vi) article 150 (which in 2011 inserted into Schedules 5th to 7th certain his­torical speeches and instruments relating to Bangladesh’s war of liberation).

Even a quick glance at the above provision would suggest that Article 7B stands at odds with the widely prevalent wisdom of constitutional designs.^[880] A function of unamendability rule (or of the amendment rules containing eternal clauses) is to ‘express’ and entrench core constitutional values.^[881] This expressive/entrenchment function seems to be largely absent in this extremely wide eternity clause.

Instead of making unamendable only the fundamental constitutional principles and the character of the Republic, Article 7B makes unamendable an unusually long series of provisions, 52 articles in total (arts 1 to 47A, and art 150) that constitute almost a third of the Constitution. Further, making unamendable ‘the provisions of articles relating to the basic structures of the Constitution’ without defining the basic structures in the first place is far too radical an innovation. This overly fluid reference to basic structure provisions might potentially generate political impasse over the issue of validity of any constitutional amendment not grounded on a consensus. No other constitution in the world, except for a nearly similar case of the Portuguese Constitution,^[883] seems to have enacted such an extremely broad eternity clause.

Adding to the complexity, Article 7B has supplied a further gloss to the amendment rule (Article 142) by mentioning certain means of amendment such as ‘insertion, modification, substitution, repeal’ or ‘any other means’. The latter-mentioned phrase, ‘any other means’, is exceedingly intriguing and vague.

If the Article 7B’s language is taken literally, it seems to mean that even no improvement of the Constitution with regard to certain major issues would be possible by amendment. This may be explicated a little further by a reference to the unamendability of any of the fundamental constitutional rights as well as the preamble of the Constitution. Instead of the fundamental rights as a whole, it is ‘all provisions relating to’ fundamental rights that have been made unamendable. Thus, if new fundamental rights such as the right to emergency medical care or the right to education are to be inserted, or, even if the current anti-liberty provision in Article 33 authorizing executive preventive detentions is to be omitted, that would squarely fall within the scope of the eternity clause. Similarly, the much-claimed constitu­tional recognition of indigenous identity that would entail modification of the nationality clause, when effectuated, would be in conflict with the eternity clause.

This is, however, not to claim that other constitutions have not attempted such a broad-based eternity clause, with the possibility of problematizing improvements of constitutional provisions. The German eternity clause, for example, prohibits an amendment ‘affecting’, among others, ‘the principles’ laid down in Article 1.^[885] Article 1 proclaims the principle of human dignity and establishes the normative value of human rights enshrined in Articles 2 to 19.

It, therefore, remains a question whether Bangladesh’s Parliament, by fore­closing any improvement over so many provisions, at all intended to have such an absurd, dead hand scenario in future. In the famous essential features case of Kesavananda Bharati v State of Kerala (1973),^[887] the Supreme Court of India was prescient about the possibility of a dead hand constitutionalism scenario through any drastic amendment of the amendment rules. In that case, the Court established that the amendability of the constitution in a basic structure-compliant way is itself an essential constitutional feature. On the entrenched status of the Indian amend­ment rules, Article 368 of the Indian Constitution, one of the majority judges in Kesavananda Bharati forcefully argued as follows:

Article 368 [...] can itself be amended to make the Constitution completely flexible or extremely rigid and unamendable.

Referring to the above comment, one commentator seeks to figure out the likely complex implications of Bangladesh’s eternity clause in these words:

Article 7B virtually makes the Constitution extremely rigid [...]. When [any] particular Constitution becomes rigid, i.e., becomes unamendable, to suit the needs of the day, the only legal option that remains is to frame a new Constitution through a Constituent Assembly. Needless to mention, the present Parliament [of Bangladesh] or any future Parliament has not that authority to do so.^[889]

The problem of abusive unamendability rule and its fragility can also be understood through the following question of Tushnet:

If the people at time-one had the power to place the provision in the constitution and specify that it be unamendable, why should the people at time-two not have the power to amend the provision, through procedures that are functionally equivalent to those used by the people at time-one (even if inconsistent with the procedures the people at time-one specified for altering the constitution)?^[890]

As scholars of constitutional designs argue, there are dangers in entrenching unamendable clauses in the constitutions of unstable democracies or the countries that have substantial risks of military coup or unconstitutional regime-change.^[891] In the near past, Bangladesh experienced a military-backed emergency government in 2007-8. At present, the country is showing all the symptoms of utterly unstable constitutionalism^[892] and is literally thrown into an ever-growing political turmoil and quagmire. A question, therefore, remains whether the Constitution’s recent anti-coup protective clause (article 7A) will usher in an effective check against further erosion of political stability or a coup in future. It also is a matter to be seen whether an ultra-rigid eternity clause will debar future amendments. After all, constitutional amendments and political attitudes to them are more a matter of ‘culture’ than institutional restraints.^[893] Therefore, any extensive list of eternal clauses in any emerging or unstable democracy is more likely than not to be disobeyed by the amending regime. Portugal offers a notable example of this, where one can see a very controversial and conflicting relationship between their own extensive eternity clause and the regime. Portugal amended its constitution through ‘revision’ in direct disregard of some of the entrenched provisions in 1989.^[894]

5.2 Constitutional Entrenchment V Popular Sovereignty: Legitimacy and Implications of the Eternity Clause

I now turn to the query of whether eternity clauses are undemocratic or whether they reflect a deep respect for the true democratic foundations of constitutional- ism.^[895] A constitution is an autobiography of a nation,^[896] and, therefore, is certain to grow along the line of developments of the nation. Modern constitutionalism presupposes the existence and growth of the constitution as a living organism so that aspirations of the people are reflected and adapted according to the needs of the time.^[897] As Henkin poignantly remarked, a ‘constitution reflecting respect for constitutionalism has to be subject to amendment if it is to reflect the sovereignty of the people contemporaneously, rather than the sovereignty of their ancestors who framed the constitution’.^[898] If the constitution is made extremely rigid or largely unamendable, a scenario of dead hand constitutionalism might occur in which the constitution would turn out to be unamendable by the current generation of people irrespective of the ‘political feeling’ or needs of the time.^[899] At the worst, this might lead to deadly political crises or extra-constitutional revolutions.

Bangladesh’s unamendability rule, it may be argued, is anything but a true respect for constitutionalism or a real attempt to preserve the basic constitutional foundations. It seems profitable here to dig into the background politics that led to the enactment of article 7B. Generally, ‘constitutional amendments in Bangladesh have been used in an instrumentalist way for political expediency which, in turn, gives electoral advantage to the ruling party’.^[900] While the 15th amendment gen­erally sets a classic example of abusive exercise of amending power for party interests, art 7B, in particular, is probably a result of micropolitics that quite often keeps the two major parties engaged in conflict and political mud-slinging. The 15th amendment amended article 150 of the Constitution to insert into it three Schedules, 5th to 7th, incorporating certain constituent instruments and historical speeches concerning the Bangladesh liberation struggle including the Declaration of Independence by the founding leader of the country. The Bangladesh Nationalist Party does not recognize the founding leader as the declarant of Independence ^[901] but rather claims that General Ziaur Rahman, the party’s founder, was the one who proclaimed Independence. The author party of the 15th amendment was probably wary of probable deletion of the recognition of the founding leader of the country in future.

By making a large body of constitutional provisions impervious to change by Parliament, Bangladesh’s eternity clause has arguably restrained the growth of the Constitution, establishing perhaps a new constitutional doctrine that is claiming infallibility. This undoubtedly is a denial of constitutional political pluralism and the principle of freedom of expression of the people as a collective entity. It is a matter of great debate whether a parliament having possessed only a derived constituent power, as opposed to the primary constituent power,^[902] can legitimately enact such a broad unamendability rule that would incapacitate the people even to make improvements to constitutionalism. It can be argued that Bangladesh Parliament has in the exercise of its ‘constituted’ power exceeded its authority in enacting an all-embracing eternity clause. Clearly, that was enacted ‘by a Parliament holding no greater power than any future Parliament’.^[903] In curtailing the amendment power of future parliament, the Parliament enacting the eternity clause has ‘acted like a Constituent Assembly, not as a Parliament equal in status and power with any future Parliament’.^[904]

Needless to say, the challenge of modern constitutionalism is to reconcile constitutional eternity clauses with popular sovereignty.^[905] While popular sover­eignty calls for the people’s power to amend their constitution to adapt to social and political demands, constitutionalism requires that the founding values of a nation should be secured against unwarranted changes by an overweening majority.^[906] A constitution which leaves ‘the door open to every kind of change [can] not perform its functions, since the function of a constitution is to ensure stable progress, and certain types of changes are incompatible with progress’.^[907] In any democracy, there is an inherent tension between the concepts of ‘popular sovereignty’ and ‘constitutional supremacy’. The internal connectivity between them is quite delicate and subtle. The concept of constitutional supremacy not only heralds the supremacy of any given constitution but also denies any supervening supremacy (or sover­eignty) of any particular organ of the State. The concept also refers to the invio­lability of certain supra-constitutional norms whether or not they are given any expression in the text. By contrast, the concept of popular sovereignty acknowledges the power of the people, at least in theory, to enact anything with regard to their polity. Within that power resides the ‘constituent’ or revolutionary power to replace the whole existing constitutional order. This power, therefore, potentially brings the two concepts into a scenario of ever-present tension. Further, since parliaments in representative democracies exercise the State power on behalf of the people, they often claim ‘parliamentary sovereignty’ in the sense of having a capacity to enact any law or constitutional amendment that is not subject to reversal by courts. That such a notion of wide power is no more compatible with the principles of modern constitutionalism is obvious, but the debates surrounding it persist.

Therefore, if the concept of constitutional supremacy were to have an upper claim, constitutional entrenchment of certain fundamental cores is perhaps ‘the most powerful tool for constitutionalism to impose limitations on the sovereignty of people [or parliament]’.^[908] In the just cited sense of ‘sovereignty of people’, however, popular sovereignty and parliamentary sovereignty are quite indistin­guishable to a significant extent. The concept of constitutional supremacy would nonetheless give ‘the sovereignty of people’ a primacy over ‘the sovereignty of parliament’. In other words, parliament’s amending power is an expression of the ‘constituted power’, ‘which is a power created and established by the constitutional text itself’, whereas the constituent power ‘is actually the power of the people to consent to create a constitution’.^[909] A parliament representing the people is, therefore, not authorized to amend the constitution to the level that is amendable only by the people exercising their original constituent power. It is worth refer­encing to a recent, unusual debate in the Pakistani Supreme Court during the hearing of petitions challenging the 18th and 21st amendments of the Pakistani Constitution involving, respectively, procedures for appointment of superior court judges and the establishment of military courts to try crimes of terrorism.^[910] The judges asked the counsel whether ‘state religion’, a foundational principle of their constitution, could be replaced with ‘secularism’ by a parliament with the com­manding political party with unequivocal support, in its manifesto, to secularism. Leading counsels argued that only a Constituent Assembly could make changes of that scale in the constitution. For our purpose, here, this argument may be taken to lend support to the view that derivative constituent power cannot enact an extre­mely broad unamendability clause without incurring the question of legitimacy.

As noted briefly above, constitutional unamendability rule by itself is riddled with the problem of democratic legitimacy.^[911] As Katz argued, entrenchment clauses are incompatible with the notion of ‘popular control of the government’.^[912] For Katz, all provisions in a constitution are amendable, although certain clauses involving fundamental principles may be made subject to a harder and ‘more deliberative amending procedure than ordinary constitutional amendments’.^[913] Despite the fact that the eternity clauses have become a phenomenon of modern constitutionalism, they in effect put ‘handcuffs’ on the citizens’ amendment lib- erty.^[914] For Albert, ‘[t]o withhold from citizens the power of constitutional amendment is to withhold more than a mere procedural right. It is to hijack their most basic of all democratic rights. Nothing is more democratically objectionable than dispossessing citizens of the power to rewrite the charter governing the boundary separating the citizen from the state, and citizens from themselves’.^[915]

Quite simply, therefore, the eternalization of a lengthy list of constitutional clauses would arguably be an affront, or ‘an imminent threat’, to the constituent power of the people.^[916] Thus, constitutional eternity clauses are legitimate only to the extent that they express and preserve the higher values of constitutionalism moored in any given constitutional order. The extent of an eternity clause both presupposes and should be predicated upon a theory of inviolability of the essential constitutional cores, established by the people on whose behalf the legislature exercises a secondary constituent power.^[917] Constitutional unamendability rule, whether entrenched in the eternity clause or is normatively applied by the consti­tutional court, must not and in fact does not foreclose parliament’s secondary constituent power. Its function should essentially be the guarantee of constitutional durability, not the impairment of constitutional progress. It should only prevent parliament’s overtaking of primary constituent power and ensure that constitutional amendments are not irreconcilably incompatible with the identity of the constitution or its essential cores.^[918]

I will now briefly take up the issue of likely implications of the Bangladeshi eternity clause, which, as indicated, holds seeds of discontent for constitutional politics with the possibility of its being used as fuel to the country’s unstable constitutionalism. In view of the curtailment of future parliaments’ authority to amend a wide number of constitutional provisions, the political actors will more likely than not take the issue of legitimacy of the eternity clause to the superior courts. Given the selfish party motivations underlying the past amendments,^[919] there is also a strong likelihood that politicians, in future, will make use of the amending power to frustrate the current unamendability rule.

Arguably, in any country whose eternal constitutional clauses are not strongly tied with the national identity, and where political consensus amongst the competing actors often remains absent, the interested party politics is most likely to maneuver with, or totally disregard, the amendment rules—a scenario which might give birth to extreme politicization of the judiciary or/and judicialization of politics.^[920] Either way, it may be argued, Bangladesh’s eternity clause will be of intriguing implications for the judiciary especially with regard to its role in reviewing any constitutional amendments. As the establishment of ‘a large part of the nation’s law as no longer subject to easy amendment by Parliament becomes [. ] an admission of failure of the much-cherished democratic principle of Parliamentary Sovereignty’,^[921] this posits the judges in a unique place within the constitutional order to manage the tension between the entrenched provisions and constitutional developments. Further, given that the representative organ of the State might tend to usurp the people’s constituent power, the higher principle of constitutional supremacy requires and legitimates the judicial application of the basic structure doctrine.^[922]

The judicial role here is, however, innately complex. There are apparently two sources of this complexity. First, the unamendable provisions in the Bangladeshi Constitution are co-extant with the basic structure doctrine at the hands of the Supreme Court. In any likely basic structure challenge, therefore, arguments might be made either that the Court’s power to annul any constitutional amendments is now completely foreclosed by art 7B, or that it applies only to amendments implicating provisions that are not mentioned in that article.^[923] Second, the 15th amendment that introduced the eternity clause reinstated the founding constitutional values in a way that apparently seems to be internally conflicting. This would facilitate the emergence of difficult questions for the Court to resolve. Consider, for example, the case of ‘secularism’ as an identity principle sitting along ‘Islam’ as the state religion. What would be the Court’s approach to the task of fathoming the extent and meaning of ‘state religion’?^[924] How would it reconcile the seemingly irreconcilable principles of secularism and state religion? Undoubtedly, these would be some difficult questions of sociopolitical and institutional ramifications for the Court to handle. In any decision involving the ‘basic provisions’ of the Constitution, therefore, both the meaning and the modification by the Court of the eternity clause would likely be implicated since art 7B makes the nation’s founding values unamendable in any manner.^[925]

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