The entrenchment of the idea of unconstitutional constitutional amendment: The 8th Amendment

Before dealing with the 8th Amendment of 1988, which was enacted during the second military regime since Bangladesh's independence, a short summary of national politics from 1971 to 1991 would be useful.

Unconstitutional amendments in Bangladesh 215 in 1971 from Pakistan, Bangladesh adopted a parliamentary form of democ­racy that faced a tragic demise in 1974,^[769] when the 4th Amendment installed an authoritarian, one-party government.^[770] The 4th Amendment, enacted by Bangladesh’s first parliament, was indeed a constitutional replacement or what many consider a “mini constitution.” In August 1975, the founding leader of the country, Bangabandhu Sheikh Mujibur Rahman, was brutally assassinated along with almost all of his family. Soon thereafter, the military intervened, and a linger­ing period of autocratic rule began. From August 1975 to December 1990, there was no democratic government at all despite intermittent national elections. The second military ruler, General H.M. Ersahd, stepped down in December 1990, yielding to a public upsurge for democracy. In 1991, a general election was held under a consensus-driven mechanism under the stewardship of the then-Chief Justice. Multiparty democracy returned and the country reembraced a parliamen­tary government system through the 12th Amendment to the Constitution.^[771]

11.3.1 Judicial restructuring

During the autocratic regime of General Ershad (1982-90), a pliable parliament enacted the 7th to 10th Amendments to the Constitution. Upon assumption of power in 1982, the general suspended the Constitution, which was “restored” in 1986. While the Constitution was suspended, Ershad issued decrees to amend the martial law “proclamation” (his “mini constitution”) with a view to enacting rules of a constitutional nature. In May 1982, one such decree gave power to the President to set up “permanent Benches” of the Supreme Court’s High Court Division.

Presidential decrees and the Chief Justice's notifications raised a serious ques­tion of their constitutional validity. Against this backdrop, lawyers initiated and “continued a sustained and powerful agitation and movement since 1986 against the dismantling of the High Court Division.”^[774] As Kamal wrote, perhaps “to put at rest the unrest this created,”^[775] the Constitution (Eighth Amendment) Act 1988 was enacted to legitimate these changes to the judicial structure, by replac­ing article 100 of the Constitution.

In Anwar Hossain Chowdhury^[776] the Appellate Division entrenched the idea of UCA, known as the “basic-structure doctrine” (BSD) in South Asia, by invali­dating the part of the 8 th Amendment that amended article 100. Mr. Anwar Hossain Chowdhury was Chairman-elect of a local government body (Union Council) in Sunamganj. He could not assume office as his opponents filed a law­suit in the HCD, which issued an injunction on releasing the election results. Mr. Chowdhury wanted to have that injunction vacated, for which he needed to file a counter-affidavit. The Commissioner of Affidavits refused to allow him to affirm the counter-affidavit in Dhaka because the concerned case stood transferred to the Sylhet Bench of the High Court Division pursuant to the rules framed by the Chief Justice under art. 100(6) as amended by the 8th Amendment. Mr. Chowdhury then filed a writ petition (No. 1252 of 1988) challenging the vires of the 8th Amendment and said Rules arguing that the Amendment mate­rially altered the basic structure of the Constitution and hence was beyond the Parliament's amendment power.

In a 3:1 majority, the SCAD held that Parliament's amendment power under art. 142 of the Constitution was “limited,” as it was a “derivative” power, not an “original” constituent power. As such, a limited amendment power could not be exercised to alter “basic structures” of the Constitution, the Court reasoned.^[778] The Court accepted the petitioner's following arguments: (i) the diffusion of the High Court Division breached the unitary character of the Supreme Court that was an unamendable basic feature, and (ii) a parliament with unlimited amend­ment power would be incompatible with the notion of constitutional supremacy, another basic pillar of the Constitution.^[779] The lead counsel Dr Kamal Hossain

Unconstitutional amendments in Bangladesh 217 successfully argued that the independence of the judiciary as a basic feature was dismantled too.^[780]

It is interesting to note that the bar deployed tremendous resources in argu­ing for an unconstitutional constitutional amendment in this case. First, the arguments were based both on substantive and procedural grounds.^[781] Second, attempts were made to ensure that the Chief Justice could not hear the appeal because he had a conflict of interest. Powers to be exercised by the Chief Justice under the amended article 100 and notices he issued were challenged. Third, the lawyers arguing the case were not simply individual lawyers hired by the clients. They indeed were representing the profession, as the Supreme Court Bar had adopted several resolutions condemning the then-President’s encroachments into the judiciary and the autonomy of the legal profession. Moreover, the lawyers for the petitioners were the most influential members of the bar. Dr Kamal Hossain was engaged as the lead counsel of Mr Chowdhury’s appeal. For the other two appeals that were conjoined, Mr Syed Ishtiaq Ahmed and Mr Amir-Ul Islam argued the case.

These factors arguably had some impact on the outcome. As reflected in the judgment, the Court took notice of the protracted lawyers’ movement and the growing anti-autocracy protests by the general public and civil society. Such pub­lic reactions may have led the Court to acknowledge the “undemocratic nature” of the amendment “in the absence of consultation with any stakeholders, law­makers and the public.”^[782]

A not-so-discussed aspect of the 8 th Amendment is the motive of the execu­tive government that had spearheaded the change. This Amendment enacted two major changes: judicial restructuring and the introduction of Islam as the state religion. Ershad proffered the justification of bringing the Supreme Court within

the reach of the people by decentralising the higher judiciary. In reality, however, the military regime wanted to emasculate the judiciary by placing judges under the constant fear of being transferred out of Dhaka. Similarly, with regard to the state religion part, the reasoning advanced was that in a Muslim-majority country Islam should be given constitutional recognition. Behind the projected justifica­tion, the military ruler wanted to achieve fresh support from the general public and the right-wing parties in the wake of increasing opposition to his regime.

The judiciary had its own stake too. Constitutional judges, in the aftermath of the intervention of the military into politics in 1975, were not allowed to enforce the Constitution at all until late 1986 and their freedom was often restricted by the regime.

11.3.2 Islam as state religion

As regards the other part of the 8th Amendment which constitutionalised Islam as state religion (article 2A), there were several challenges before the Supreme Court that remained undecided. The challenges were based on the grounds that the state religion clause breached the principles of equality and secularism. Interestingly, at the time the state religion part of the 8th Amendment was chal­lenged, the Constitution did not have the fundamental principle of secularism as a founding value. The first military ruler since independence, General Ziaur Rahman, amended the Constitution by issuing decrees and initiated a process of Islamisation of the Constitution. Specifically, he amended the preamble and article 8 to replace the fundamental principle of secularism with the principle of “absolute trust and faith in Almighty Allah.” When a parliament was formed, these changes were legitimated by the 5th Amendment, enacted by a pliable par­liament. The second military ruler, General Ershad, completed the Islamisation project by making Islam the state's religion via the 8th Amendment.

In 2010, the Court invalidated the 5th Amendment that removed the princi­ple of secularism from the Constitution. A far-reaching limitation of this SCAD­decision was that the Court could not, nor was it asked to, declare unlawful the state religion clause inserted by the 8th Amendment. The decision nevertheless added a twist in the trajectory of Islam's constitutional status. In the wake of the 5th Amendment decision, the state religion challengers renewed their petition on 11 June 2011.^[784] In September 2011, the Awami League government that led the drafting process of the founding Constitution with secularism as a fundamental principle enacted the 15 th Amendment, discussed further below, to re-instate “secularism.” Intriguingly, alongside the principle of secularism, the state reli­gion clause was kept intact albeit with a new wording.^[785] This would probably have pleased the right-wing parties and the Bangladesh Nationalist Party (BNP), the founder of which, General Zia, first omitted the principle of secularism.

However, since the 15th Amendment did not restore “secularism” in its origi­nal form, but rather conjoined it with the state religion clause, human rights activists and some progressive-minded intellectuals made a supplemental chal­lenge to the state religion part of the 8th Amendment based on the argument of the restoration of “secularism.” Initially, the Court agreed to hear the challenge. In a dramatic turn of events, however, the challenges to the state religion clause were summarily dismissed in March 2016, some 23 years after their lodgement.^[786] When the challenges were due to be heard, some religious groups commenced demonstrations against the state religion challenge and the petitioners. They con­demned the case as an act of atheists and warned that it would trigger distur­bances. Another Islamist group “requested” that the Court reject the petition. They met with the Chief Justice in the morning of the day the case was scheduled for hearing. In an unprecedented move, the Court dismissed the challenges citing the lack of locus standi of the petitioners. It is not difficult to see that there were underlying politics as well as lobbying by religious groups that led to the rejection of the challenge to the state religion clause.

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