Abstract
Many modern constitutions today contain what is called eternity clauses (also known as constitutional entrenchment), which make one or more constitutional provisions unamendable. The Constitution of the People’s Republic of Bangladesh (hereafter ‘the Constitution’) originally did not enact any such eternity clause. An eternity clause, however, has been entrenched in 2011 through the 15th amendment to the Constitution. Long before the enactment of the eternity clause, the Supreme Court of Bangladesh 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. By invoking the basic structure doctrine, the Supreme Court has so far struck down 4 out of 16 constitutional amendments with finality. After the Court handed down its annulment decision in May 2011 invalidating the 13th amendment, the Constitution was amended to enact, among others, an extraordinarily wide eternity clause, article 7B. With this, Bangladesh became the second country in South Asia, after Afghanistan, to have constitutional entrenchment.
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Notes
- 1.
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).
- 2.
- 3.
The Constitution (Fifteenth Amendment) Act 2011 (Act No XIV of 2011) (hereafter ‘15th amendment’).
- 4.
The Supreme Court comprises two divisions, the High Court Division (hereafter ‘HCD’) and the Appellate Division. The Appellate Division hears appeals from any order, judgment, or decree of the HCD, which has the original jurisdiction of judicial review. The president appoints the chief justice and other judges. Judges are traditionally appointed first as additional judges to the HCD for two years. See, respectively, articles 95 and 98, and 102 and 103 of the Constitution.
- 5.
(1989) BLD (Special) (AD) 1 (AD = Appellate Division).
- 6.
In a fifth annulment decision, the HCD on 5 May 2016 struck down the 16th amendment that restored an original provision providing for removal of the Supreme Court judges pursuant to a resolution of Parliament. See Asaduzzaman Siddiqui v. Bangladesh, Writ Petition No. 9989 of 2014, HCD. The judgment is available at: <http://supremecourt.gov.bd/resources/documents/783957_WP9989of2014.pdf>. For a commentary, see Hoque (2016a). This decision was endorsed by the Appellate Division on 3 July 2017 (Bangladesh v Asaduzzaman Siddiqui (2017) CLR (AD) (Spl. 1) where the government’s petition for review is currently pending. See further n 141.
- 7.
- 8.
As in Bangladesh, eternity clauses via constitutional amendments have been enacted in Belgium, Cambodia, Columbia, France, Guatemala, Indonesia, Peru and Romania.
- 9.
See art 149 of the Constitution of Afghanistan of 2004 that makes the state religion clause unamendable.
- 10.
Contrast the Pakistani Constitution of 1973 (art 239(5)-(6)) that bars judicial review of constitutional amendments and confirms that there is no limitation whatever on Parliament’s amending power. On the other hand, the Constitution of India specially protects the amendment rule and a few other important provisions, providing that their amendment, in addition to requiring votes of a two-thirds majority of members of Parliament present, will also require the ratification by not less than a half of the State legislatures (art 368). Exceptionally, article 82(5) of the Sri Lankan Constitution of 1978 authorizes the repeal and replacement of the whole Constitution, but it (art 83) also requires a referendum for the amendment of certain basic provisions including the referendum and state religion clauses. See also the Constitution of the Kingdom of Bhutan 2008 (art 33(9)) and the Constitution of the Republic of Maldives 2008 (art 267) that both contain referendum requirements and prohibit amendments during a state of emergency.
- 11.
To provide a detailed account of this is beyond the scope of this chapter. It may be briefly noted that the 5 January 2014 general elections were held in the aftermath of an unresolved political crisis concerning the mode of election-time government. The election witnessed the lowest turnout in history and was virtually a one-party election as the major opposition parties boycotted it altogether. Candidates in 153 seats (out of 300 seats to be elected) were declared ‘elected’ without contestation, and a party whose candidates, despite their withdrawal from the elections, were declared elected later joined the current Cabinet. Unprecedentedly, that party has also been officially appointed as the opposition in Parliament. In effect, therefore, there is no opposition in the current parliament.
- 12.
Jacobsohn (2011a). For a brief account of practises of designing amendment rules, see generally Dixon (2011). Beyond entrenching the cores, eternity clauses also aim at preserving fundamental principles of constitutionalism such as human dignity, rule of law, constitutional supremacy, individual liberties and separation of powers. See Roznai (2013), p. 657, and (2016). For a critical summary of works on forms and limitations of amendment rules, see Colon-Rios (2015).
- 13.
The Constitution (Fifteenth Amendment) Act 2011, s. 42.
- 14.
See the Constitution (Second Amendment) Act 1973 (Act No. XXIV of 1973), ss 2 and 7 (inserting clause (3) to art 26, and clause (2) to the then art 142).
- 15.
The amendment was made by way of issuing the Second Martial Law Proclamation Order No. IV of 1978. This extra-constitutional amendment was later validated by the 5th amendment. See n 49.
- 16.
A new clause (1A) was inserted to art 142 that provided as follows: ‘… when a Bill … which provides for the amendment of the Preamble or any provisions of articles 5, 8, 48, 56, 58, 80, 92A or this article, is presented to the President for assent, the President, shall, within the period of seven days after the Bill is presented to him, cause to be referred to a referendum the question whether the Bill should or should not be assented to’.
- 17.
Choudhury (1995), pp. 82–84.
- 18.
See the Constitution (Twelfth Amendment) Act 1991 (Act No. XVIII of 1991).
- 19.
A potential argument for not referring the Fifteenth Amendment Bill to referendum was probably that the Court in the meantime invalidated the 5th amendment that constitutionalized the referendum requirement (see n 16). This argument is hardly sustainable as the referendum mechanism for the amendment of certain provisions including article 142 was re-enacted by the 12th amendment.
- 20.
On the concept of constitutional identity, see generally Jacobsohn (2011b), and Rosenfeld (2012, 2010). The development of the concept of constitutional identity is credited with the German Constitutional Court in the early 1950s, which, however, began much earlier in the 1870s. See Polzin (2016). See also the Southwest Case (1951) 1 BverfGE 14. On how to identify and constitute national constitutional identity, see Grewe (2013), and Tushnet (2010).
- 21.
The Constitution of Bangladesh was drafted by a thirty-four-member Drafting Committee of the Constituent Assembly that was constituted with 403 elected representatives of the people who were elected in the 1970–71 elections for provincial and central legislative assemblies of erstwhile Pakistan from which Bangladesh became independent in 1971. See also Hossain (2013) n 2. For the Constituent Assembly Debates, now see Halim (2015).
- 22.
- 23.
Hossain (2013), p. 140 and at 144 he writes: ‘Our efforts, in the Constitution Drafting Committee, had been directed towards, as faithfully as possible, preparing a draft […] by working out specific provisions on the basis of four principles’.
- 24.
The meaning and scope of the principles of nationalism, socialism, democracy and secularism were described in, respectively, arts 9, 10, 11 and 12 of the original Constitution of 1972.
- 25.
It is interesting to note that two pre-Constitution constituent instruments impliedly recognized democracy and popular sovereignty as founding values. See the Provisional Constitution of Bangladesh Order 1972 (11 January 1972), which spoke about ‘the manifest aspiration of the people of Bangladesh that a parliamentary democracy shall function in Bangladesh’; and the Proclamation of Independence Order 1972 (10 April 1972; with effect from 26 March 1971, the Constituent Assembly), which cited the will of the people as the ‘supreme’ will.
- 26.
These principles are set out in Part III (arts 8 to 25) of the Constitution.
- 27.
Article 7 states that ‘[a]ll powers in the Republic belong to the people’ and that ‘[the] Constitution is, as the solemn expression of the will of the people, the supreme law of the Republic, and if any other law is inconsistent with this Constitution that other law shall, to the extent of the inconsistency, be void’. In a 1975 case, Md. Shoib v Government of Bangladesh (1975) 27 DLR (HCD) 315, Justice Bhattacharya described popular sovereignty and constitutional supremacy as a ‘basic concept’ of constitutionalism: ‘[T]he Constitution … is the [s]upreme law of the Republic and all powers of the Republic and their exercise shall be effected only under, and by the authority of, the Constitution. This is a basic concept on which the modern states have been built up.’ It seems, therefore, that Md. Shoib is kind of a post-Independence precursor to the basic structure doctrine that was established in 1989 in Bangladesh. See also Sahar Ali v A.R. Chowdhury (1980) 32 DLR (HCD) 142, in which the HCD famously held that its constitutional supervisory jurisdiction could not be ousted, and thus by implication recognized that judicial constitutional review was a basic feature of the Constitution.
- 28.
Alam (1991), pp. 209, 224 (emphasis added).
- 29.
Bhardwaj (2011).
- 30.
Mohsin (2004).
- 31.
Hassan (2004), pp. 185, 189.
- 32.
On this see, e.g., Faraguna (2016), p. 491. There is a debate regarding whether the constitutional and national identities are two different concepts, or one is subordinate to the other. Here, I have used the two concepts interchangeably. For a view that they mean the same thing, see Besselink (2010), pp. 42–44; Marti (2013) (arguing that ‘constitutional identity’ also means ‘identity of the people themselves’); and Toniatti (2013), esp. pp. 63–67. For a contrasting view, see Rosenfeld (2012), p. 29.
- 33.
Kabeer (1991) (emphasis added).
- 34.
- 35.
Rashiduzzaman (1994), pp. 58–59 and Karim (2015) (arguing that ‘one could effectively argue that’ the majority Bengali Muslims ‘would not favour a secular state’, and that ‘secularism as a value was not based on a consensus of the population but was imposed from above by the ruling party, the Awami League’).
- 36.
‘Bangabandhu’, meaning ‘Friend of Bengal’, was given as a title to the founding leader of Bangladesh by the students in 1969 in the aftermath of a mass upsurge.
- 37.
Fazal (1999), pp. 190–191. See Parliamentary Debates (12 October 1972, Government of Bangladesh, Parliamentary Secretariat 1972) 20.
- 38.
- 39.
Hossain (2013), p. 141.
- 40.
Ibid.
- 41.
Menski (2015), pp. 9, 23.
- 42.
Rosenfeld (2010), p. 209.
- 43.
- 44.
See Jackson v Attorney General [2006] 1 AC 262 (per Lord Steyn) (the UK system has certain ‘constitutional fundamentals’ that ‘even a sovereign Parliament’ cannot abolish), quoted in Colon-Rios (2014), pp. 306, 312, n 56. See also Premier, KwaZulu-Natal v President of the Republic of South Africa [1996] ZACC 10, in which the South African Constitutional Court remarked in obiter that a constitutional amendment ‘radically and fundamentally restructuring and reorganizing the fundamental premises of the Constitution[] might not qualify as an “amendment” at all’. This obiter is somewhat conditioned by United Democratic Movement v President [2002] (11) BCLR 1179, in which the Court saw ‘little if any scope for challenging the constitutionality of amendments that are passed in accordance with the prescribed procedures’.
- 45.
In the early 1960s, for example, Pakistani superior courts observed that ‘fundamental feature[s] of the constitution’ were immune to change. See M Abdul Huq v Fazlul Quader Chowdhury (1963) 15 DLR (Dacca) 355; PLD 1963 SC 486. On the other hand, the Indian Supreme Court’s decision in Golaknath v State of Punjab AIR 1967 SC 1643 can be seen to have inaugurated in India the view that constitutional amendments can be unconstitutional.
- 46.
See the Constitution (Second Amendment) Act 1973; and the Constitution (Fourth Amendment) Act 1975 (Act No. II of 1975).
- 47.
Choudhury (1995), p. 45.
- 48.
Feldman (2001), pp. 1097, 1099.
- 49.
The Constitution (Fifth Amendment) Act 1979 (Act No. I of 1979). According to one commentator, 5th amendment was an act of Islamization of the Constitution in theory. See Husain (1990), p. 150.
- 50.
See the Constitution (Eighth Amendment) Act 1988 (Act No XXX of 1988), which enacted article 2A as follows: ‘The state religion of the Republic is Islam, but other religions may be practised in peace and harmony in the Republic’. These wordings echoed the language of the Objectives Resolution of 1949 of the Constituent Assembly of Pakistan, which stated that ‘adequate provisions shall be made for the minorities to freely profess and practise their religions’. See Murshid (1997), p. 1. General Ershad publicly defended the official status of Islam saying that ‘while the distinct identity of the Bengali people lay in their culture, language and geographical entity, independent sovereignty and other spheres of nationalism could only be defined through Islam.’ See Kabeer (1991) p. 46 (quoting the Daily Ittefaq, Dhaka, 21 June 1988).
- 51.
One writ petition (WP) was filed by a civil society organisation, Nari Pokkha (For Women) (WP No. 1330 of 1988), one by Citizens’ Committee for Resisting Communalism and Autocracy (WP No. 1834 of 1988), and the other by Mr. Shakti Das Goswami (WP No. 1177 of 1988). One of these petitions has been recently dismissed by the Court, while the rest are still pending. See Hoque (2016b) and also n 143.
- 52.
Riaz (2010).
- 53.
See nn 15–18 and the accompanying text.
- 54.
See the 5th and 7th amendment cases noted below in nn 85–87. The legitimization was done by inserting protection clauses (respectively paragraphs 18 and 19) into the Fourth Schedule of the Constitution to provide that the laws, proclamations, and regulations made during the martial law regimes would be valid and immune from challenge.
- 55.
The (Constitution) Fifteenth Amendment Act 2011, s. 4.
- 56.
Now see art 2A of the Constitution that reads as follows: ‘The state religion of the Republic is Islam, but the State shall ensure equal status and equal right in the practice of the Hindu, Buddhist, Christian and other religions’. Further, the amendment (ibid, s 2) added a secular translation of Bismillah-ar-rahman-ar-rahim at the beginning of the preamble, namely ‘In the name of the Creator, the Merciful’, which was first installed by the military regime in November 1977.
- 57.
For a negative assessment of this balancing, see Halim (2014), p. 83.
- 58.
- 59.
Menski (2015).
- 60.
Fascinatingly, this interconnectedness was first explored in a 1973 book on secularism, which until recently remained largely out of sight of scholars and researchers. See Anwar (2015) (arguing that secularism and democracy are the two sides of the same coin).
- 61.
Menski (2015), p. 9.
- 62.
- 63.
Jackson v Attorney General (2006).
- 64.
Re the (Draft) Nineteenth Amendment Bill, Sri Lankan SC Determination No. 32/2004 (17 December 2004).
- 65.
Kesavananda Bharati v State of Kerala (1973) 4 SCR 225. See also Minerva Mills Ltd. v Union of India, AIR 1980 SC 1789. For an account of different conceptions of constituent power, see Colón-Ríos (2014). On constituent power, see further Colón-Ríos (2012), Loughlin and Walker (2007), Somek (2012), Thornhill (2012), and Tushnet (2015). See further Sect. 5.2 below.
- 66.
(1989) BLD (Special) (AD) 1. Hearing of this case continued for more than two months, from 19 June to 23 August 1989, and the judgment was handed down on 2 September 1989.
- 67.
The Constitution did not expressly provide for judicial review of constitutional amendments. From this point of view, some argue that the framers did not intend to establish judicial review of constitutional amendments but rather enacted a UK-style judicial review. See Ahmed (2015); Omar and Hossain (2005) (arguing that the Court’s annulment of the 8th amendment was a breach of popular sovereignty). On the Bangladeshi perspective of the basic structure doctrine, see Chowdhury (2014), p. 43, Hoque (2011), pp. 112–119, and Khan (2011a), p. 89 (critiquing judicial review of constitutional amendments as ‘judicial tyranny’ and dubbing the Supreme Court empowered with this power as ‘Leviathan’), Talukder and Chowdhury (2008), p. 161.
- 68.
The other part of the 8th amendment made Islam the state religion, to which there were constitutional challenges too. See above n 51.
- 69.
The third parliament that passed the 8th amendment was ingeniously constituted through sham elections in which preselected party people stood and won, and when the military ruler was still the country’s President in civilian attire. On electoral fraud and rigging of the 1988 elections, see Akhter (2001), pp. 132–137.
- 70.
Other two challenges were: Jalaluddin v Bangladesh (Civ. Appeal No. 43 of 1988) and Ibrahim Sheikh v Bangladesh (Civ. Petition for Leave to Appeal No. 3 of 1989).
- 71.
The only dissenting judge was Afzal J, who, however, conceded (at pp. 212–213 of the judgment) that in the name of amendment ‘the Constitution cannot be destroyed’. Compare this obiter with Pakistan Lawyers’ Forum v Federation of Pakistan PLD 2005 SC 719, in which the Pakistani Supreme Court observed (at para. 56) that ‘while there may be a basic structure to the Constitution, and while there may also be limitations on the power of Parliament to make amendments to such basic structures, such limitations are to be … enforced not by the judiciary […] but by the body politic […].’ But now see the case noted below in n 128.
- 72.
Although the Court’s reasoning was based on constitutional fundamentals, it was most conspicuously informed and influenced by the famous Indian decision in Kesavananda Bharati (n 64) that first authoritatively established in the common-law world the doctrine of basic structure. On this, see, among others, Krishnaswami (2009) and Morgan (1981), p. 307. The doctrine has been recently applied by the Indian Supreme Court in a decision annulling the 99th amendment of the Indian Constitution that gave the executive branch a better role than it previously had in the judicial appointments process. See the Supreme Court Advocates-on-Record Association v Union of India (2016) 5 SCC 1 (decision of 16 October 2015).
- 73.
For criticisms of the Court’s reasoning, see Hoque (2011), pp. 114–116 and Kamal (1994), p. 110. An instance of the Court’s ambivalent reasoning is to be found in two majority judges’ controversial view that a constitutional amendment is not a law within the meaning of art 7(2) of the Constitution that provides that ‘any other law’ inconsistent with the Constitution would be void. Chowdhury J. (at p. 95), by contrast, observed that the Constitution provided the ‘rule of recognition’ against which all other laws including an amendment are to be tested. That a Constitution-amending Act is a ‘law’ under art 7(2) was later established by Justice Kamal in Kudrat-E-Elahi Panir v Bangladesh (1992) 44 DLR (AD) 319, 346.
- 74.
Nor was it necessary for them to provide an exhaustive check list on such a delicate issue. Nevertheless, ‘restricting the basic structures of the Constitution to certain fundamental propositions would have strengthened’ the Court’s reasoning. See Malik (2002), p. 442.
- 75.
(1989) BLD (Special) 1, respectively at 74 and 169.
- 76.
Ibid., p. 156, para 377 (‘These are structural pillars of the Constitution and they stand beyond any change by amendatory process’. On the other hand, Justice B.H. Chowdhury (at 60, para. 52) identified the following overlapping principles as basic structures: sovereignty of the people; limited government; separation of powers, supremacy of the Constitution, and ‘oneness’ of the Supreme Court. Even the opposing counsel and the dissenting judge did not rule out the existence of certain structural pillars. Ibid at 90.
- 77.
Ibid. 140 and 156, paras. 331 and 377. Justice Ahmed was in effect referring to three fundamentals, secularism, democracy and socialism, when he observed that martial law regime had changed ‘secularism and socialism’. He did not mention the status of Bangalee nationalism.
- 78.
Ibid., p. 140, para. 332 (emphasis added). The idea that unlawful amendments may become part of the constitution because of the failure of someone to challenge them is an overly positivistic view of the law. In Siddique Ahmed (2011), the Appellate Division termed this idea as a ‘misconceived’ one. Justice Ahmed (at p. 140), however, reasoned that ‘the fact that basic structures of the Constitution were changed in the past cannot be and is not accepted as a valid ground to answer the challenge to future amendment of this nature’.
- 79.
(1989) BLD (Special) 1, 174, para. 456.
- 80.
Ibid., p. 209, para. 553 (emphasis added); ‘fundamental’ here is arguably used in a negative sense.
- 81.
Ibid.
- 82.
Ibid. Afzal J. also thought that ‘[t]oday a basic feature in our Constitution is the Presidential form of government’. This idea too is open to question in that it was Republican ‘democracy’, and not one of its particular form, that was made a basic feature in 1972.
- 83.
The Supreme Court in a series of earlier decisions declined to strike down constitutional amendments that reserved seats for women in Parliament. See Farida Akhter v Bangladesh (2007) 15 BLT (AD) 206, Fazle Rabbi v Election Commission (1992) 44 DLR (HCD) 14, and Dr. Ahmed Hossain v Bangladesh (1992) 44 DLR (AD) 109. Further, in at least two famous cases the Supreme Court used the doctrine of basic structure as a substantive normative reference when it enjoined the separation of the junior criminal judiciary from the executive and declared the mandatory death penalty as unconstitutional, arguing in both cases that judicial independence was a basic constitutional feature that could not be dismantled in any manner. See, respectively, Secretary, Ministry of Finance v Md. Masdar Hossain (2000) 52 DLR (AD) 82, and BLAST v Bangladesh (2010) 30 BLD (HCD) 194 (endorsed by the Appellate Division in its decision of 5 May 2015).
- 84.
See the text that corresponds to nn 49 and 54.
- 85.
(2010) 62 DLR (AD) 298.
- 86.
Bangladesh Italian Marble Works Ltd. v Bangladesh (2006) BLT (Special) (HCD) 1 (judgment of 29 August 2005). For a brief commentary on this decision, see Hoque (2005).
- 87.
(2013) 65 DLR (AD) 8 (judgment of 15 May 2011), affirming Siddique Ahmed v Bangladesh (2011) 63 DLR (HCD) 84.
- 88.
Constitution (Seventh Amendment) Act 1986 (Act No. 1 of 1986).
- 89.
In Siddique Ahmed (as in n 87 above), the Appellate Division observed that these ‘high ideals [were entrenched] both in the Preamble and […] [other] articles of the Constitution so that those fundamental principles […] remain permanent[] as the guiding principles and as the ever-lasting light house for our Republic’.
- 90.
(2012) 64 DLR (AD) 169 (judgment of 10 May 2011) (known as the Thirteenth Amendment Case).
- 91.
- 92.
In his dissent, Justice M. Imman Ali, above n 90 at 472, commented that the 13th amendment did ‘not destroy any basic structures of the Constitution’. See further M. Saleem Ullah v Bangladesh (2005) 57 DLR (HCD) 171, in which the HCD held that non-party caretaker government did not breach any basic structure but rather strengthened democracy.
- 93.
See above, respectively, nn 85 and 87.
- 94.
5th Amendment Case, n 85 at 406 (per Islam, CJ).
- 95.
See art 7A of the Constitution (declaring the subversion of, or conspiracy to subvert, the Constitution to be an act of sedition).
- 96.
Part IXA, inter alia, provides that during a state of emergency certain fundamental rights including the right to move the Court to enforce fundamental rights can be suspended (arts 141B and 141C).
- 97.
See Dixon (2011). See n 12 and the accompanying text.
- 98.
Albert (2013), p. 225. For a good example of this type of expressive function of amendment rules, see art 1 of the South African Constitution of 1996 that entrenches certain features (such as democracy, human dignity and equality, non-racialism, supremacy of the constitution, the rule of law, and multiparty system), requiring three-quarter of votes in National Assembly and six votes of the nine provincial delegations in the National Council of Provinces to amend them.
- 99.
Friedman (2011), p. 80, also discusses the possibility and rate of successes of these varying eternity clauses. On a detailed framework of the classification of eternal clauses, see further Schwartzberg (2007) (the classification is basically based on the degree of permanence of the entrenched provisions and their subject matters). See also Albert (2015) (providing a taxonomy of entrenchment clauses as ‘preservative’, ‘transformational’, and ‘reconciliatory’).
- 100.
Even the Constitution of the Portuguese Republic (7th revision of 2005), which in its art 288 includes a very long list of eternal clauses such as the ‘republican form of government’, the ‘separation between church and state’ and so on, refers to fourteen principles which ‘Constitutional revision laws shall [have to] respect’.
- 101.
Interestingly, art 142 mentions slightly different means than art 7B. Art 142 speaks of ‘addition, alteration, substitution, or repeal’.
- 102.
The Basic Law of Germany, art 79(3).
- 103.
See the Constitution of the Federative Republic of Brazil 1988, Tittle IV, Section VIII, Article 60, paragraph 4.
- 104.
(1973) 4 SCR 225.
- 105.
Ibid at 365, para. 309 (per Sikri, CJ).
- 106.
Khan (2011b).
- 107.
Tushnet (2015), p. 640.
- 108.
See, e.g., Friedman (2011).
- 109.
On the concept of unstable constitutionalism, see generally Tushnet and Khosla (2015).
- 110.
Ginsburg and Melton (2015), p. 686.
- 111.
See also a similar instance from Honduras in Landau and Sheppard (2015).
- 112.
- 113.
- 114.
See Hamilton (1999), cited in Ginsburg and Melton (2015), p. 87 (arguing that a constitution’s ability to remedy defects and unintended consequences of texts would make it durable). On the idea of a ‘living Constitution’ in the sense of developments and changes in constitutional law occurring through constitutional adjudication, see Kavanagh (2003), p. 55, Rehnquist (2006), p. 401, and Strauss (2010). In this chapter, however, the term ‘living Constitution’ is used to mean, additionally, constitutional changes through formal amendments.
- 115.
Henkin (1994), p. 10.
- 116.
Friedman (2011), pp. 77, 79.
- 117.
Aziz Khan (2015), p. 1.
- 118.
Against the backdrop of such political confrontation regarding the Declaration of Independence, the matter was dragged to the High Court Division, which in Dr. M.A. Salam v Bangladesh (2009) 61 DLR (HCD) 737 held that any publication claiming that Major Ziaur Rahman first declared independence of the country, being incompatible with the Proclamation of Independence Order 1972, is unconstitutional.
- 119.
See Loughlin (2013), p. 18 (arguing that the ‘original’ and ‘derived’ constituent power divide is a misconceived idea, because, constituent power is not engaged only at the founding moment but continues to function within an established regime as an expression of the open and dynamic aspects of constitutional ordering). For a similar view, see Tushnet (2015), p. 654 (arguing that the ‘originary’ constituent power is exercised every time an otherwise unconstitutional transformation of the constitutional order is successful, and that it may take place through the ordinary amendment rule or through extra-legal means). For a distinction between primary and secondary constituent power, proposing a limit on Parliament’s amending power see, among others, Roznai (2015, 2017). For an argument of coherent approach to the nature of amending power, see Klein (1978), p. 202, Lutz (1994), p. 355, and Thornhill (2012).
- 120.
Aziz Khan (2015).
- 121.
Ibid.
- 122.
- 123.
As Justice Shahabuddin Ahmed in Anwar Hossain Chowdhury, above n 66 at 156, remarked, ‘the doctrine of bar to change of basic structure is an effective guarantee against frequent amendments of the Constitution in sectarian or party interest’.
- 124.
Dickinson (1987), cited in Paraas Diwan and Piyushi Diwan 11. It is perhaps from this perspective that some scholars see an unassailable ‘fundamental core’ in the US Constitution that lacks any express constitutional entrenchment. See Albert (2015) (arguing that the first amendment rights may be regarded as informally unamendable); and Rosen (1991), p. 1073 (arguing that an amendment to the US Constitution violating the freedom of speech would be unconstitutional).
- 125.
Abdelaal (2016), pp. 1, 8–9.
- 126.
Ibid., p. 36.
- 127.
On this, see ‘Can Islamic Republic of Pakistan be a Secular State?’ The Hindu (New Delhi, 6 May 2015) <http://www.thehindu.com/news/international/pak-court-debates-possibility-of-secular-state/article7173516.ece>. See the Supreme Court’s majority decision of 5 August 2015 in the Constitutional Petition No. 12 of 2010, accepting the concept of unamendability of basic structure of the constitution. See Rizvi (2015). See also a Kenyan case, Njoya v AG [2004] 4 LRC 559, 593, in which the Court of Appeal held that Parliament’s amendment power did not extend to a power to wholly abrogate the existing Constitution. See further a Venezuelan case of 1999, cited in Colón-Ríos (2012), p. 79–80, in which the Venezuelan Supreme Court held that ‘the constitutional amendment rule applied only to the government and not to the people in the exercise of their constituent power, which included the ability to alter the constitutional regime through extra-constitutional means’.
- 128.
In academic discourse, the necessity and legitimacy of entrenchment clauses are a matter of intense debate. While some scholars tend to regard constitutional entrenchment as an effective tool to preserve the state identity, others consider the idea anti-democratic. For a middle-course argument, see Barber (2016) arguing that entrenchment sometimes brings benefits but also presents hazards.
- 129.
Katz (1996).
- 130.
Ibid., p. 252.
- 131.
Albert (2010), p. 663.
- 132.
Ibid., p. 663.
- 133.
Abdelaal (2016), p. 9.
- 134.
It is important to note that the argument of ‘essential constitutional cores’ should not be considered a reflection of state-centric theorizing of constitutional order that is now seen to be insufficient in a postmodern context. This idea indeed points to a supra-state, supra-constitutional normative structure characteristically bound to any given nation.
- 135.
In the Bangladeshi context, I elsewhere argued that the extraordinary judicial review power vis-à-vis constitutional amendments should be exercised extremely rarely and only for preserving the ‘identity of the State’. See Hoque (2013). See also Talukder and Chowdhury (2008), who, in the context of the then entrenched provisions that required referendum for change, argued that amendments passed through referendum ought to be immune from judicial review. See further Collett (2010), p. 327, Dixon and Landau (2015), p. 606 (arguing that judges should apply basic structure doctrine only when they perceive serious threats to the democratic order, and that they should justify those threats by surveying transnational practises and experiences).
- 136.
- 137.
This has recently happened in Honduras in an unprecedented way. The Honduran Constitution limited presidential terms and made the prohibition of reelection an unamendable clause. In a 2015 decision that is seen as an instance of ‘abusive constitutionalism by judiciary’, the Constitutional Chamber of Honduras declared inapplicable a series of original constitutional provisions that prohibited presidential reelection. See Landau and Sheppard (2015). On the concept of abusive constitutionalism, see Landau (2013), p. 189 (defining it as the use of the tools of constitutional change such as amendment rules or judicial review to undermine democracy).
- 138.
Menski (2015), p. 27.
- 139.
See Dellinger (1983), p. 386 (arguing, in the US context, that judicial involvement in the amendment process is necessary to legitimate constitutional changes).
- 140.
Interestingly, in a recent post-article 7B decision concerning the constitutionality of the Constitution (Sixteenth Amendment) Act 2014 (Act No. XIII of 2014) that brought back an original provision for the removal of judges pursuant to a resolution of Parliament on the ground of proved judicial misconduct, the HCD eschewed these questions. In striking down the 16th amendment, the Court referenced art 7B only in passing, saying that an amendment against the Constitution’s basic structure would be unconstitutional. The decision, now on appeal, is deeply problematic in that it had in effect invalidated an original constitutional scheme. In the Appellate Division, however, Justice Ali (at pp. 229–230 of the judgment noted in n 6 above) commented that “the force” of article 7B “would appear to be open to question” as it purports to bind the people of the future.
- 141.
It is interesting to note that, before the Constitution’s revival of the principle of ‘secularism’, that is, when the ‘state religion’ alone remained an entrenched provision, there was an implied acknowledgement of the state religion clause’s basic structure-incompatibility in M. Saleem Ullah v Bangladesh (2005) 57 DLR (HCD) 171, para 67, in which Awlad Ali J. remarked that the constitutionalization of the principle of ‘absolute faith in the Almighty Allah’ was destructive of one of its basic structural pillars. In the same way, the Appellate Division in the 5th Amendment Case, n 85 at 367, remarked that the principle of ‘absolute trust and faith in the Almighty Allah’ was inconsistent with the secular identity of the State. The comparative reader interested in how the Indian superior courts dealt with the meaning of ‘secularism’ under the Indian Constitution that does not have a state religion clause might see Alam (2009), p. 29, and Bhambhri (2008), Padhy (2008), and Mahmood (2008), p. 755.
- 142.
In March 2016, the Court studiously escaped an encounter with these questions by summarily dismissing a revived challenge to the state religion clause. The challenge was originally lodged by 15 citizens some 23 years ago on 9 June 1988. See the HCD’s order of 28 March 2016 in Kemaluddin Hossain (later Sirajul Islam Chowdhury) and others v Bangladesh, WP No. 1834 of 1988. For a commentary on this decision see Hoque (2016b).
- 143.
Barber (2016), p. 2.
- 144.
Bangladesh’s article 7B, despite its creeping limitations, can, therefore, be regarded as an acknowledgement of the presence of a ‘higher law beyond state law’ and a reflection of increasing legal-plurality-consciousness, not just in theory but also in constitutional practise. The plurality-consciousness, however, has not been demonstrated pragmatically. I thank Professor Werner Menski for drawing my attention to this aspect of the eternity clause.
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Acknowledgements
I gratefully acknowledge Werner Menski’s helpful comments on an earlier draft. I also thank the anonymous reviewer for the most helpful comments that helped me improve the content of this work. I sincerely thank Tashmia Sabera for her superb research assistance and Emraan Azad for bringing to my notice some important materials.
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Hoque, R. (2018). Eternal Provisions in the Constitution of Bangladesh: A Constitution Once and for All?. In: Albert, R., Oder, B. (eds) An Unamendable Constitution?. Ius Gentium: Comparative Perspectives on Law and Justice, vol 68. Springer, Cham. https://doi.org/10.1007/978-3-319-95141-6_8
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