The Theory of Unamendability of Basic Structure of the Constitution

The theory of inviolability of basic constitutional structure, the basic structure doctrine, is increasingly gaining hold in other civilian and common-law systems of constitutionalism.^[844] For example, in the United Kingdom, where the doctrine of parliamentary sovereignty has the strongest roots, the Supreme Court recently suggested that the UK system has certain ‘constitutional fundamentals’ that ‘even a sovereign Parliament’ cannot abolish.^[845] Likewise, in Sri Lanka, where the Supreme Court can only review a pre-enactment Bill, the Court found a move to make Buddhism official state religion to be against fundamental premises of the Sri Lankan Constitution, although Buddhism had already had ‘the foremost place’ in the Sri Lankan constitution.^[846]

The basic structure doctrine refers to the idea that certain fundamental cores of any given constitution may never be amended by parliament, which, it is argued, has only a limited amending power and not the ‘constituent power’ of the people.^[847] As such, the judiciary, the organ that is more insulated from politics, should have the legitimate power to ‘declare’ unlawful, rather than to unmake, any constitutional amendment that destroys the basic structure of the constitution.

As mentioned above, the Constitution of Bangladesh declared four principles as constitutional fundamentals, of which three were modified or substituted by suc­cessive post-1975 governments. The rest of the fundamentals, i.e., ‘democracy’, did not bother the autocratic regimes, because democracy was completely put aside at the time. Against this background and when public movement against autocracy was increasingly mounting, the Supreme Court in a 1989 landmark decision in Anwar Hossain Chowdhury v Bangladesh^[848] established what is widely known as the basic structure doctrine in South Asia.^[849] The decision was handed down in the period following the withdrawal of the second martial law and the ‘revival’ of the Constitution in 1986.

In this case, the Court invalidated part of the 8th amendment that diffused the Supreme Court’s HCD into several regional permanent benches.^[850] In the early 1980s, the second martial law regime promulgated a series of regulations deforming the HCD into seven permanent benches, six of them being outside of Dhaka. These changes seemingly stood at odds with the original article 100 of the Constitution that provided for a unitary Supreme Court with two divisions and for its ‘permanent seat’ in the capital. When this significant change was constitutionalized through the 8th amendment by a parliament of questionable legitimacy,^[851] three constitutional challenges were unsuccessfully made at the HCD-level.^[852] On appeal, however, the petitioners of the case successfully argued that the unitary character of the Republic was a basic structure of the Constitution, of which the HCD’s countrywide judicial power was a part. It was further argued that the impugned innovation was also incompatible with the concepts of judicial independence and separation of powers as the President was given unchecked power over the appointment and transfer of judges. As such, the argument went on, Parliament did not have the authority under the amendment rules to enact the Amendment in question breaching these funda­mental features.

In a three-to-one majority judgment,^[853] the Appellate Division took the view that Parliament’s amendment power is not an ‘original’, but rather a ‘derivative’ (derived) constituent power. Putting due emphasis on foundational values of the nation, the plurality Court argued that Parliament’s unlimited amending power in the sense of being empowered to demolish the Constitution’s basic character would run afoul of the constitutional cores of democracy, rule of law, and constitutional supremacy.^[854] In its attempt to stretch out the reasoning,^[855] the Court sought to identify the basic structure provisions of the Constitution that were umamendable but could not come to a conclusion as to which they were.^[856] Taking a pragmatic approach, Justice M.H.

The doctrine of basic structure is one growing point in the constitutional jurisprudence. It has developed in a climate where the executive, commanding an overwhelming majority in the legislature, gets snap amendments of the Constitution passed without a Green Paper or White Paper, without eliciting any public opinion, without sending the Bill to any select committee, and without giving sufficient time to the members of the Parliament for deliberations on the Bill for amendment.^[857]

By contrast, Justice Shahabuddin Ahmed thought that the basic constitutional features were ‘clearly identifiable’. His Lordships identified the following eight overlapping ‘basic structures’: popular sovereignty; supremacy of the constitution; democracy, Republican Government; unitary character of the State; separation of powers; independence of the judiciary; and fundamental rights?⁶

Interestingly, Anwar Hossain Chowdhury had shown inadequate, if any, reflections on the founding values of the Constitution. One of the majority judges, Justice Ahmed, clearly recognized that during martial law regime(s) the funda­mental principles of the Constitution were drastically changed,^{[858] [859] but he offered a self-contradictory and jurisprudentially troubling proposition about the continuing validity of those changes:}

Within a short time came the first Martial Law [by which] the Constitution was badly mauled 10 times. Secularism, one of the Fundamental State Principles, was replaced [...] and socialism was given a different meaning. Supreme Court, one of the symbols of national unity, was bifurcated for about two years and then was restored. All these struc­tural changes were incorporated in and ratified [by] the Constitution (Fifth Amendment) Act, 1979.

In spite of these vital changes from 1975 [that] destroy[ed] some of the basic structures of the Constitution, nobody challenged them in court after revival of the Constitution; con­sequently, they were accepted by the people, and by their acquiescence have become part of the Constitution?^[860]

Equally deficient, on this score, is Justice Rahman’s opinion about the foun­dation principles. He aptly recognized the fundamentality of ‘the principles of nationalism, democracy and socialism’, but remarked that the ‘Preamble [...] now [stood] as an entrenched provision that [could not] be amended by the Parliament alone’.^[861] As previously mentioned, the preamble was made an entrenched provision in 1978, but only after ‘secularism’ was struck out and the three other fundamental principles that Justice Rahman cited were modified. It seems, therefore, that Justice Rahman left unanswered the question of validity of new principles instead of the foundation values.

The only dissenting judge, Justice A.T.M. Afzal, noted that ‘the changes made in the basic features within a span of 17 years [1972-1989] have been too many and too fundamental'.^[862] Justice Afzal, in his own words, was trying to show how the organic document of the nation had ‘developed and grown in our context in ful­fillment of the hopes and aspirations of our people during this brief period of 17 years’.^[863] His recognition of all constitutional changes, even though ‘too fun­damental’ or enacted by autocratic regimes, as a reflection of people’s ‘hopes and aspirations’ is an unacceptable denial of the true nature of people’s power to change their constitution. It can, however, be said that Justice Afzal recognized the concept of basic constitutional structure, but was willing to relocate the power to amend or sustain the basic features at the hands of Parliament.^[864]

Some 20 years after the 1989 decision on parliament’s incapacity to amend basic constitutional features, the Supreme Court in 2010 and 2011 declared unconstitu­tional three more constitutional amendments: the 5th, 7th and 13th amendments.^[865] Concerning the constitutionality of the 5th amendment that legitimated the first martial law regime,^[866] the Appellate Division by a unanimous decision in Khondker Delwar Hossain v Bangladesh Italian Marble Works Ltd^[867] largely endorsed the HCD that in 2005 found the changes brought about by the Amendment to be destructive of the Constitution’s basic structure.^[868] By another unanimous decision in Siddique Ahmed v Bangladesh,^[869] the Appellate Division struck down the 7th amendment that legitimated the second martial law regime.^[870] In both decisions, the Appellate Division emphasized that, by enacting what a parliament cannot legislate, the 5th and 7th amendments breached a number of basic features of the Constitution such as democracy, constitutional supremacy, and the rule of law.

In the third annulment decision in Abdul Mannan Khan v Bangladesh (2011), the Appellate Division struck down the 13th amendment that incorporated the system of an apolitical, non-partisan caretaker government in 1996 for the sole purpose of ensuring free and fair general elections within three months of disso­lution of parliament.^[872] The core of the plurality Court’s reasoning was that the system of an ‘unelected’ government for whatever period was against a basic structure of the Constitution, that is, democracy. I elsewhere argued that this sharply split (4:3) decision was an inappropriate application of the basic structure doctrine and that the misapplication resulted from the Court’s constitutional interpretation in exclusion of local political specificities and the compelling purpose of the 13th amendment.^[873] For the purpose of this chapter, however, what needs to be stressed is that the Abdul Mannan Khan Court reaffirmed the notion of unamendability of the State’s democratic character.^[874]

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