Factors and actors in unconstitutional constitutional amendments discourse
The idea of UCA has provided a vehicle for judicial engagement with constitutional amendment in several ways. Applying the doctrine or based on it, the court can declare a constitutional amendment unconstitutional and strike it down, or it can simply declare it unconstitutional without invalidating.
The Supreme Court can be part of unconstitutional constitutional amendment discourse, as evident in the SCAD’s decision annulling the NPCTG in the 13th Amendment Case that ultimately led to the enactment of the 15 th Amendment abolishing the system. The Court can also appear as a countervailing force against executive power vis-avis unconstitutional constitutional changes as was the case regarding the judicial restructuring part of the 8th Amendment. Moreover, the judiciary as a politicalUnconstitutional amendments in Bangladesh 227 entity may be motivated by the self-interest of preserving its power within the governance structure.[818] Indeed, like in India, the Supreme Court in Bangladesh has used the doctrine of basic structure or UCA, along with the other tool of public interest litigation (PIL), as a “path” to judicial power.[819]
Political parties and elected branches of the government are also an important, probably the most important, factor in the political discourse of UCA. The executive branch is generally aware of what would or would not be an unconstitutional amendment. It nevertheless has decided to enact unconstitutional amendments, either to remain in power without any political resistance or to perpetuate power. In this process, the ruling party invariably and overwhelmingly sides with the executive. This scenario occurs particularly when the executive is autocratic or near autocratic or when parliament is dominated by a supermajority ruling party. In the case of the 8th Amendment, noted above, the amendments were first introduced extra-constitutionally by a dictator. A pliable parliament later formally enacted the 8 th Amendment. In the case of the 15 th Amendment, the executive turned out to be overweening and utilised all available constitutional means to achieve some unconstitutional changes through that Amendment. For example, it unduly influenced the parliamentary committee to discard a reform plan as regards the NPCTG system and to recommend its abolition instead. On the other hand, the executive-dominated parliament was quick in passing the Amendment Bill. As has already been noted, the Supreme Court played an active role in creating an a priori ground, by invalidating the NPCTG, for the legislative abolition of the system. The parliament and the executive government found justifications in that ground for de-constitutionalising the NPCTG.
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