Introduction

Many modern constitutions today contain what is called eternity clauses (also known as constitutional entrenchment), which make one or more constitutional provisions unamendable.^[783] The Constitution of the People’s Republic of Bangladesh

^For example, the German Basic Law of 1949 makes federalism, democracy and socialist Republican character of the State unamendable, while the Turkish Constitution of 1982 declares secularism to be a permanent provision.

See, especially, article 79(3), to be read with articles 1 and 20, of the German Basic Law. See Tomuschat and Currie (2010). (hereafter ‘the Constitution)^{^[784]} originally did not enact any such eternity clause. An eternity clause, however, has been entrenched in 2011 through the 15th amendment to the Constitution.^{^[785]} Long before the enactment of the eternity clause, the Supreme Court of Bangladesh^{^[786]} in a 1989 famous decision established the basic structure doctrine or the idea of ‘unconstitutional constitutional amendment’, ruling that Parliament lacks authority to amend the Constitution in a way that would destroy its basic structure.^{^[787]} By invoking the basic structure doctrine, the Supreme Court has so far struck down 4 out of 16 constitutional amendments with finality.^{^[788]} After the Court handed down its annulment decision in May 2011 invalidating the 13th amendment,^{^[789]} the Constitution was amended to enact, among others, an extraordinarily wide eternity clause, article 7B.^{^[790]} With this, Bangladesh became the second country in South Asia, after Afghanistan,^{^[791]} to have constitutional entrenchment.^{^[792]}

Unlike other constitutions that have entrenched provisions, Bangladesh’s Constitution does not specify any principles or fundamental cores that are impervious to amendment rules but rather catalogues a lengthy list of ‘provisions’ as unalterable.

Article 7B makes unamendable the following: the preamble (that contains four ‘high ideals’ of the State), all fundamental principles of state policy, all fundamental rights provisions, and ‘the provisions of articles relating to the basic structures’. It seems that the eternity clause, interpreted literally, renders almost the whole of the Constitution unamendable. It is not yet fully known what motivated the legislature to import such a wide clause that seems to bind the hands of the future generations tight regarding constitutional change or improvement. It is, however, not difficult to presume that it was the fierce political disagreement on the question of national identity principles that acted as a key motivating factor for entrenching those principles by shielding them, through an unamendability rule, against any future change. Extension of the unamendability rule to an unusually long list of provisions, however, logically leaves a question of whether the eternity clause seeks to consolidate democratic values or is anti-democratic itself.

In the 16th amendment decision, the Appellate Division has already imported a further broad meaning of article 7B to invalidate that amendment (see n 6). It is nevertheless too early to assess the likely impact of such a broad-based eternity clause on constitutional politics and adjudication, especially with regard to the Supreme Court’s role in interpreting a constitutional amendment in the light of principles of constitutionalism. The difficulty, in this regard, is also somewhat linked with the emergency-type scenario attendant to the enactment of article 7B in the sense that this fundamental change in the Constitution has been brought about by a parliament during the time of what can be called an ‘elected’ but largely unrepresentative post-2014 government.^[793]

The design of the Bangladeshi eternity clause seems to be a stark deviation from global practises of designing constitutional entrenchment clauses that generally seek to protect identity principles of the State such as federalism, republicanism, official religion and secularism.^[794] By contrast, Bangladesh’s extremely broad eternity clause has virtually made a very large part of the Constitution unamendable.

This, it is argued, has effectively turned the country’s constitution from a living instrument to one that has become almost permanent, thereby retarding the sovereignty of people. This chapter will examine the legality and legitimacy of this type of all-embracing constitutional entrenchment, analyzing its likely political and legal implications in the light of constitutional theories concerning popular sovereignty and judicial role vis-a-vis constitutional changes.

Following this introduction, the present chapter describes the amendment rule of the Constitution (article 142) and briefly charts out its development. The third section provides an account of the founding values of the nation and considers their political development. The objective, here, is to shed some light on the politics of determining or changing the State’s identity principles, which have been the subject matter of confrontational politics and hence repeated constitutional amendments. Next, the chapter analyzes the development of the theory of unconstitutional constitutional amendments by the Supreme Court of Bangladesh, investigating, especially, how the Court contributed to the crystallization of fundamental constitutional cores. These analyses form the background for the fifth section, which examines the legitimacy and implications of Bangladesh’s eternity clause.

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Source: Albert Richard, Oder Bertil E.. An Unamendable Constitution? Unamendability in Constitutional Democracies. Springer International Publishing,2018. — 389 p.. 2018

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