Introduction
That a constitutional amendment can be unconstitutional despite its procedural compliance with the amendment rule is not a new concept in public law. The idea of “unconstitutional constitutional amendment” (UCA) is rather a well-developed, living concept.
The idea is premised on the theorising that a constitution comprises certain essential cores and, therefore, an amendment that dismantles one or more of those essentials is unconstitutional. The idea of unconstitutional constitutional amendment is famously known as “the doctrine of basic structure” in South Asia.1 The Supreme Court of Bangladesh subscribed to the idea in its 1989 decision in Anwar Hossain Chowdhury v Bangladesh (the 8th Amendment Case).2In Chowdhury, the Appellate Division had struck down part of the 8th Amendment3 that diffused the Supreme Court's High Court Division (HCD)4 into several regional permanent branches.5 Its reasoning was that the 8th
* I would like to dedicate this chapter to the loving memory of my mentor Prof M Shah Alam, who passed away on 31 August 2020. Prof Alam's seminal work on the legality of state religion amendment in Bangladesh is cited in this chapter.
1 See R Hoque, ‘Implicit Unamendability in South Asia: The Core of the Case for the Basic Structure Doctrine' (2018) 3 Indian J of Const and Administrative L 23; A Choudhuri and K Shivani, ‘Determining the Constitutionality of Constitutional Amendments in India, Pakistan and Bangladesh: A Comparative Analysis' (2017) 10 National U of Juridical Sc L Rev 3.
2 (1989) BLD (Special) 1, Justice Afzal dissenting.
3 The other part made Islam the “state religion.” On the legality of the state religion part of the 8th Amendment, see S Alam, ‘The State-Religion Amendment to the Constitution of Bangladesh: A Critique' (1991) 24(2) Verfassung und Recht in Ubersee 209.
4 The Supreme Court comprises the Appellate Division (hereafter “SCAD”) and the High Court Division (hereafter “HCD”). The HCD exercises the original jurisdiction of constitutional judicial review. The SCAD hears appeals from any decision, order, and judgment of the HCD. The Constitution of Bangladesh (16 December 1972) structured the HCD as an integral lower division of the Supreme Court. See arts 94, 102, and 103 of the Constitution of Bangladesh.
5 The literature on the Bangladeshi perspective includes the following: MJU Talukder and JA Chowdhury ‘Determining the Province of Judicial Review: A Re-Evaluation of “Basic Struc-
DOI: 10.4324/9781003097099-11
Amendment violated an important basic feature of the Constitution: the unitary character of the state. Later, in 2010 and 2011, the Appellate Division of the Supreme Court (SCAD) declared unconstitutional with finality three more amendments - the 5th, 7th, and 13th Amendments. Further, in 2017, the Appellate Division by a unanimous decision struck down the 16th Amendment, but the decision has yet not become final because of a petition for review.[756] [757] The Constitution of Bangladesh has so far gone through 17 amendments; the first one was in 1973 while the latest was in 2019. In regard to other constitutional amendments that confronted judicial scrutiny, the court either endorsed their constitutionality[758] or lent to them some legitimacy but not without questioning their legality.[759]
Apart from the judiciary, multiple political factors contributed to those annulment decisions while the political branches too had their own share in the doctrine’s usage. As we will see below, the lawyers’ movement against executive encroachments into judicial independence in the 1980s coupled with a public mobilisation against autocracy paved the way for the idea of UCA in Bangladesh. On the other hand, the elected branches had overly self-interested political gains in mind when enacting most, if not all, constitutional amendments.
In most constitutional systems, party-interest and constitutional amendment objectives often converge. In Bangladesh’s case, however, the ruling party in successive regimes has used constitutional amendments to exclude the opposition, realise incumbency advantage, and deepen the political divide that exists in the confrontational, polarised politics of the two major parties. It is indeed the design of excluding the opposition that has made the “self-interest” of the ruling party in constitutional amendments so problematic. At one point, for example, the current ruling party - the Bangladesh Awami League - resorted to the 15 th Amendment in 2011 to abolish the system of election-time “non-party caretaker government” (NPCTG), which was brought to the Constitution in 1996 in fulfilment of a demand of that party itself when it was in the opposition.Arguably, behind every amendment, which can be considered unconstitutional, was the narrow party politics that was invariably exclusionary. Yet, the available literature has largely failed to capture the political dimension of unconstitutional constitutional amendments in Bangladesh. This chapter seeks to close this gap by examining the politics of two “unconstitutional” constitutional amendments - the 8 th and the 15 th Amendments. It will investigate how different political forums - the legislature, judiciary, political parties, and the constituent people - have influenced, and become informed of, the growth of the idea of UCA. The central argument of this chapter is that the politics of unconstitutional amendment in Bangladesh is deeply tied to diverse parameters of local (constitutional) politics whereas the concerned actors operate both cooperatively and incongruously, depending on their self-interest.
A note on the scope of this chapter should be made at the outset. The present chapter examines only two constitutional amendments - the 8th and the 15th. The 8th Amendment had two parts: one introduced six regional permanent branches of the High Court Division contrary to the original scheme of the Constitution, and the other part made Islam the state religion. The judicial restructuring part of the 8th Amendment was declared unconstitutional by the SCAD, but the state religion part has never been invalidated. Nevertheless, this paper considers the state religion amendment as unconstitutional for being incompatible with one of the founding cores and analyses the background politics thereof. The other amendment examined is the 15 th Amendment which has not been challenged in court. The 15 th Amendment has many parts, which form a curious mix of constitutional and unconstitutional amendments. This chapter examines two such 15 th Amendment changes as unconstitutional amendments - the abolition of the NPCTG system and the insertion of an extraordinarily broad eternal clause.[760]
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