Chapter: One

Introduction

1.1: Introduction:A constitution is a system of basic laws and

principles for the Government of a nation. It differs

from a ordinary statute or law in that a statute must

provide, at least to a certain degree, the details of the

subject it treats, whereas a constitution usually gives

the general principles, frame-work of the law and

government. Permanence and generality are the main

characteristics of most of the constitutions. As a rule

and practice, a constitution does not deal in detail but

enunciates the general principles and directions. It is

not practicable for a written constitution to specify, in

detail, all its aims, objects and purposes or the means

by which they are to be applied.

In a democracy, the people are the most important

factor, and a democratic constitution has to be framed

and amended from time to time according to the principles

proposed by the people. Because they forge and drop this

instrument to assert their supremacy wherever it suits

them; for what the will of the people creates and it can

also overthrow.

The legislature is the fundamental organ of the

state and "the repository of the Supreme will of society.1

1 Wilfred. E. Binkley and Malcolm C. Moos, A Grammer of American politics (New York) p.6.

1

1.2: Discussion about topic:

The amendment of the constitution confirms the view that

Bangladesh has a flexible constitution with stability.

Political Philosophers, Scientists and experts in

constitutional Law emphasize the importance of amending

the Constitution as and when necessary. In a developing

society like Bangladesh there are rapid changes in its

economic, social and political activities, the

constitution must recognize the need of its being altered

to suit the changing conditions. The constitution makers

cannot bind all subsequent generations by their own views

and, therefore must make a provision, if the society or

the country so likes, to introduce the needed changes in

the constitution "H.E. Wills writes in his book

"Constitutional Law of United States" that "the doctrine

of amend ability of the Constitution is grounded in the

doctrine of the sovereignty of the people." He says, "If

no provision for amendment were provided, there would be

a constant danger of revolution.

If the method of amendment were too easy, there would be

the danger of too hasty action all the time. In either

case there would be a danger of the over throw of our

political institutions. Hence, the purpose for providing

for the amendment of the constitution is to make it

possible gradually to change the constitution in an

2

orderly fashion as the changes in social conditions make

it necessary to change the fundamental law to correspond

with such social change.

1.3: Importance of the matter:

The Constitution of the Bangladesh was made a long time

ago, and since the time it was written, there have been

many changes to our society. Although the necessary and

proper clause gives, the government has applied powers

and the rights to take actions that are necessary

"stretching" the words of the Constitution, there are

some necessities that list today which are not even

referred to in the Constitution. Thus, amendments make

the government able, with the proper process, to make

necessary changes to the Constitution.

The Constitution is not set in stone. It is a living

document. It must serve its purpose. It has to march with

the needs of the time. There are times when it is

necessary to amend the Constitution and it is a serious

matter. That is why special provision is incorporated in

the constitution laying down the procedure of amending

the constitution. Since the Constitution reflects the

will of the people and not the will of the government

alone, it is imperative that a national consensus is

arrived at with the opposition members of Parliament on

3

issues that need amendments in the light of the changed

situation of the day.2

1.4: Research objective;The main objectives of the research are-

1) To trace out the historical background of the issue.

2) To define term amendment of constitution and basic

structure doctrine etc.

3) To find out the relation between amendment of

constitution and basic structure doctrine.

4) To find out the importance of the amendment of the

constitution.

5) To find out the limitation of the amendment of

constitution.

6) To find out the implied limitation of the amendment of

constitution.

7) To find out the problem of the doctrine of basic

structure.

1.5: Research methodology: At the beginning of preparing this research paper I have

follow the instruction of my honorable teacher syed

sarfaraj Hamid Assistant professor, Department of Law,

Northern university. Then I inquired the library of our

university and asked for some reference books relating to

2 Barrister Harun ur Rashid. The Daily Star Law and ours Rights published on 02/06/2004

4

the given topic amendment of Bangladesh Constitution and

basic structure doctrine but no such books were

available. Then I have gone some books shops to purchase

books relating to the given topics. However, the

information is not sufficient. Then I have started

searching the World Wide Web and internet through Google

search engines to find out relevant materials about the

topic. I have also found some other study materials from

some important books. After studying the all document, I

prepared the research paper on Amendment of Bangladesh

Constitution.

1.6: Limitation of the research:The core problem in doing the research is the time

factor. I was within limited period to complete the

research works. Which really hinder the job to be

perfect. I could not gather much information to makes the

topics more clear though got a lot of article, papers,

books, journals and others I have failed to collect all

required information from these in this short period of

time. As I am doing such a difficult job for the first

time and whit immature mind. My incapability of

understanding the matter deeply and analyzing it in

proper way has also been a limitation of the research

paper.

5

Chapter: Two

Definition and

discussion:

2.1: Introduction:

The Constitution of the People's Republic of Bangladesh

is a result of long epoch-making "struggle for national

liberation" and a product of "a historic War for National

Independence". After the successful end of the war all,

the members of the Constituent Assembly of Bangladesh

sitting in a Session of the Assembly set up "The

Constitution Drafting Committee" for preparing a draft

constitution and for submission of the draft to the

Constituent Assembly. While preparing the draft the

members of the Drafting Committee examined many records,

documents, judicial precedents and constitutional

conventions. The Committee members consulted

Constitutional Acts of British India and England. They

consulted the Constitutions of Canada, Australia, Eires,

former U.S.S.R., Pakistan, India and other countries of

Asia, Europe, America and Africa. The members having

regard to the spirit of the struggle of national

liberation and the War of Independence borrowed ideas and

inspirations from many sources in preparing the "Draft

Constitution". The draft constitution in the form of a

6

Bill was ultimately adopted by the Constituent Assembly

on the fourth day of November 1972, A.D.

Now in order to study the Constitution of Bangladesh it

is necessary to know the origin, sources, historical

background, models and other fundamentals of the

Constitution. An effort is therefore made to present the

authentic definition, brief history, short analysis as

well as discussion on other relevant aspects of

Constitution.3

2.2: Definition of constitution:

The origin of the word "Constitution" is from Latin word

"Statuere" meaning 'set up'. The prefix 'con' in front of

Statuere makes the word stronger. (Word Origins by

Wilfred Funk).

Constitution is the "Basic Law" and "the Supreme Law" of

a sovereign state. Lord Bryce defined a Constitution as

"a frame of political society promised through and by law

that is to say, one in which law has established

permanent institutions with recognized functions and

definite rights".

"Constitution is normally meant a document having a

special legal sanctity which sets out the frame-work and3 A.K.M.Shamsul Huda.the constitution of Bangladesh, volume-1 ,first edition 1997.p1.

7

the principal functions of the organs of Government of a

State and declares the Principles governing the operation

of those organs.4

Bolingbroke wrote "By Constitution, we mean, whenever we

speak with propriety and exactness, that assembly of

laws, Institution and customs derived from certain fixed

principles of reason that compose the general system,

according to which the community hath agreed to be

governed".

K. C. Wheare in his book Modern Constitution has defined

Constitution as "The word constitution is commonly used

in at least two senses in any ordinary discussion of

Political affairs. First, it is used to describe the

whole system of a Government of a country, the collection

of Rules, which establish and regulate or govern the

Government.

These rules are partly legal in the sense that Courts of

law will recognize and apply them and partly non-legal or

extra legal, taking form of usages, understandings,

Customs or conventions which Courts do not recognize as

law but which are not less effective in regulating

Government than the Rules of law strictly so-called."

"A constitution", says Cooley in his Treatise on

Constitutional Limitations," is the fundamental law of a

4 Constitutional Law-E.C.S. wade &A.G. Phillips.

8

state, containing the Principles upon which the

Government is founded, regulating the division of

Sovereign powers, and directing to what persons each of

these powers is to be confined and the manner in which it

is to be exercised."

In Muhammad Abdul Hoque - versus-Fazlul Quder Chowdhury5

Murshed, J. (as he then was) observed," A Constitution is

a Solemn and sacred document of seminal and Supremel

consequence, partaking the nature of almost scriptural

sanctity, embodying, as it usually does, the final will

and testament of the Sovereign authority that resides in

the people and providing the manner and norms of the

Government of nations. It therefore assumes something of

immutability of the laws of the Medes and the Persians.

It is not subject to easy change which is usually

effected by a special and some difficult process".

The constitution is not a home for legal curiosities. it

is the epitome of national aspirations of free political

society. It must be so rendered of the constitution as to

be able to receive and reflect the tones of the national

life.6

According to the justice Holmes, Constitution is not a

text of dialect but a means of ordering of life of a

5 PLD 1963 Dacca 6646 Felix Frankfurter’s Mr. Justice Holmes and the Supreme Court.

9

progressive people. While it is roots were in the past,

it was for the unknown future.7

2.3: Origin and growth of Constitution:

It is presumed that for the survival, continued existence

and progress of mankind where it has first started its

beginning to form or organize a society the mankind

itself by experience and from the day to day practices

has developed their own set of customs, conventions,

regulations for maintaining order in the society and

gradually developed their own Rules and Laws for the

preservations of their rights, privileges and defining

duties. The Rules, regulations, convention, customs,

usages and laws were not found codified or in other words

written in any form until the City States of Greece and

their social thinkers began to put down their thinking in

writing ; Plato thought and outlined away to run

the State in his Republic. According to him an

Aristocracy of Political intellect, a body of guardians

qualified to rule through a rigid system of training

shall be able to make an ideal state. The idea of

constitution was elaborated by Aristotle in his

Classification of Governments as monarchies, tyrannies,

aristocracies and oligarchies, democracies and so on.

Possibly the early Greek City States-used to run and

7 Ramhari Mandal v. Nilmoni Das. A.I.R 1952 Cal.184.

10

manage their State as per rules, regulations set out by

the elders, elites and citizens which at that time were

treated as their manual or constitution to follow in the

matter of administering their States. Aristotle first in

the known history divided constitutions into two classes

namely good and bad or true and perverted. Aristotle

again classified constitution according to the forms of

Government.

11

Aristotle considered the above classification exhaustive.

Because he formulated above classification on the basis

of his investigation into 158 Constitution, both Greek

and Barbarian prevailing during his time. In his opinion

all states with the passage of time go through a cycle of

change by revolution. Aristotle thought that the finest

possible type of Government is the rule of one man who

from the point view of political authority is the

supremely virtuous one. This is monarchy. But after some

time such a virtuous man cannot normally proceed, yet the

rule of one man remains by force. Aristotle named it

as"Tyranny or Despotism." Tyrant would one day face the

Opposition of a body of upright men who would over-throw

him and the tyranny would be replaced by a rule of a

group of upright men. This is "Aristocracy". After some

time Aristocracy would also degenerate. Yet the rule of

the few would continue by force against the opinion of

the ruled. This system in order to perpetuate its power

would adopt corrupt practices. This corrupt form of

Government by a few is called oligarchy. In the end the

oligarchy would be over thrown by the rule of many which

was called Democracy by Aristotle. In his view the

democracy is a rule by poor men. They are proved to use

the system as a license. So anarchy is inherent in it. It

may seem plunge into darkness due to negation of orderly

rule. Out of the darkness again there will arise the rule

of virtuous man who can restore order and reason. The

cycle is thus completed and begins all over again.

12

Aristotle's problem was to find out a stable form of

Government to break aforementioned cycle. He thought that

he discovered it in the rule by middle class which he

called "the Polity". It was his "Golden mean" between the

ideals of monarchy and aristocracy on the one hand and

the perversions of tyranny and oligarchy, as well as

democracy on the other. Aristotle thought that the rule

of the middle class i.e. the polity can ensure stable

form of Government.8

2.4: Classification of the constitution:

(a) Unwritten & Written

For quite a good deal of time the human society amongst

others has been coming across broadly two kinds of

constitutions, one is unwritten, for instance English

constitution expounding unitary state with parliamentary

form of Government having a Constitutional figure head of

8 A.K.M.Shamsul Huda.the constitution of Bangladesh, volume-1 ,first edition 1997.p 7

13

the STATE and the others are written Constitutions as in

U.S.A., France, former U.S.S.R: etc. envisaging

Presidential form of Government and also otherwise. There

are written Constitutions adhering to the Principles of

Parliamentary form of Governments e.g. in India, and in

Bangladesh.9

(b)Rigid and Flexible Constitution;

The distinction between a flexible and rigid constitution

rests upon the method by which the constitution may be

changed. the constitution which can be amended by

ordinary law- making procedure is called a flexible

constitution. ordinary law-making procedure means making

law by simple majority which is possible by a majority of

the votes of the member present and voting. all ordinary

law of the country passed by this process for example

British constitution is flexible because there is no

distinction between ordinary and constitutional law in

Britain. The British Parliament is supreme and it can

enact or amend any law, be it ordinary or constitutional

in nature, by ordinary law making procedure and it never

needs to adopt any special procedure.

On the other hand, the Constitution which cannot be

amended by ordinary law making procedure but a special

procedure (like two-thirds or three-fourths majority) is

9 A.K.M.Shamsul Huda.the constitution of Bangladesh, volume-1 ,first edition 1997.p 7

14

needed, it is called a rigid Constitution. A rigid

Constitution is considered the supreme law and regarded

as a sacred document. The parliament cannot amend it

going beyond the Constitutional limitation; nor can it

make any law contrary to the Constitution. This is why

where there is a rigid Constitution; there exists

clear distinction between the constitutional

law and ordinary law. Constitutional law can be amended

only by a special or difficult procedure whereas ordinary

law can be made and amended by ordinary law making

procedure. So in case of rigid Constitution

Constitutional law stands over and above ordinary laws

and no ordinary law can be inconsistent with

Constitutional law. To quote C.F. Strong 'there are four

methods of constitutional amendment in use

among states with rigid constitutions; firstly,

that by the legislature under special

restrictions; secondly, that by the people through a

referendum; thirdly, that method peculiar to federal

states where all or a proportion of, the federating

units must agree to the change; and fourthly, that by a

special convention for the purpose.10.

(c) Federal & Unitary

There may be another classification of Constitutions

namely "Federal" and "Unitary". This Classification is

based on the methods by which the Powers of the

10 Strong, C.F,political constitutions,(London:ELBS, 1970)p.10

15

Government are distributed between the Central Government

and State Governments. In a Federal Constitution the

powers of Government are divided between a Government for

the whole country and Governments for parts of the

country. The Central Government is for the whole country.

However, from country to country name of the Central

Governments vary. For instance in U.S.A. the Government

for the whole country is called the Federal Government.

In India, it is called "Union Government". The Central

Government has its own defined area and subjects over

which it exercises its authority. The State Governments

have their own territorial jurisdiction and subjects to

administer over which the Central Government does not

ordinarily lay any control. In a Unitary Constitution,

the legislature of the whole country is the Supreme and

the only law making body in the country. In the old

sense, the word constitution is identical with

constitution of Imperial Rome, meaning collection of Laws

and Ordinances of the emperors.

Early English law used the word "Constitution" in order

to refer to constitution of clarendon or the "Calare don

Code", from Lord Chancellor Clarendon of England.

Although it may apparently look repetitive yet to

elaborate, constitution may again be classified as under.

(d) Amendment Basis

16

Constitutions may be classified according to the method

by which they may be amended.11 There are countries whose

constitutions may be amended by the same legislative

process as in the case of the amendment of the ordinary

law of the country. For instance the Constitution of New

Zealand may be amended by a simple majority without

taking recourse to any special procedure. There are

others which could be amended by a special process. In

countries which require a special process for amending is

constitution the procedure begins from the simplest to

the most complicated, e.g., former U.S.S.R. requires only

a two thirds majority in the house of the Supreme Soviet

for an amendment for her Constitution; whereas a cumbrous

procedure will have to be gone through in U.S.A.,

Switzerland and Australia for an amendment of the

respective constitutions: Hence, constitutions are

classified as "Flexible" and "Rigid". Where no special

process is required to amend the constitution, it is

"flexible". Where special procedure is required for

amendment of the constitution, it is "rigid".

Dicey defined, "Flexible" constitution as "one under

which every law of every description can legally be

changed with the same ease and in the same manner by one

and the same body".

Dicey defines a "rigid" constitution as "one under which

certain laws generally known as constitutional or

11 N. Arunchalam Classification of Constitution on Constitutional Law.

17

fundamental laws cannot be changed in the same manner as

ordinary laws"12.

(e) Distribution of Power Basis

Constitutions are classified according to the method of

distribution of powers Between the Government of the

whole country i.e. the Central Government or Union

Government and Local Government i.e. State Government or

Provincial Government. Under these heads, constitutions

are classified as Federal and Unitary. Federal

constitutions are sub-divided into two types,

federation's proper and quasi federations.

In a federation proper the constitution provides for the

distributions of powers between the Central Government of

the whole country and State Government of the part of the

country in such manner that each Government is legally

independent within I Own sphere. The Central or Union

Government has its own area of powers and the Provincial

or State Governments do not share the area of powers of

the Central Government and the Provincial Government

remains free from interference of the Central Government

with regard to their allocated subjects or powers.

In the federal system neither is subordinate to the

other, both are co-ordinate. U.S.A, Switzerland and

Australia are examples of Federation proper. K.C. WHEARE12 A.K.M.Shamsul Huda.the constitution of Bangladesh, volume-1 ,first edition 1997.p 7

18

said, "The Supremacy of the Constitution over all the

legislatures of the country and the rigidity of the

constitutions are the essential characteristics of a

Federal Constitution and they flow necessarily from the

idea of Federation. On the other hand in a Unitary

constitution a legislature of the "hole country is the

highest law making authority and it may allow some powers

to local legislatures. But the latter powers can easily

be superseded by the supreme power. Though Canada and its

constitution: along to the Federal Category but it is not

federation proper

2.5; Definition of amend or amendment

The word 'amend' is derived from the French word

signifying 'to make better', 'to change for the better.13

To modify for the better, improve, to alter formally by

modification, deletion or addition.14 Substitution and

omissions.15 .According to dictionary meaning to 'Amend'

interalia, means to "free from faults or errors, correct

or improve, rectify, reform, make alteration in detail,

to repair, to better and surpass. However, in the context

reliance on the dictionary meaning of the word is not

always appropriate because what Art. 142 empowers to do

is the amendment of the provisions of the constitution.

It is well known that the amendment of a ‘Law’ may in

13 The Law Lexicon (Reprint Edition.1987) p.62.14 Webster’s Ninth New Collegiate Dictionary.15 Seorajin Debi v. Satyadhan Ghosal AIR 1954 Cal 119.58 C W N 64.

19

proper case include the deletion, substitution in their

place of new provisions. Similarly an amendment of any

one or more of the provisions of the law and the

constitution, which is the subject matter of the

power conferred by Art. 142 may include addition,

alteration, substitution, modification or change of the

provisions or repeal by Act of Parliament. The power to

amend in the context is a very wide power and it cannot

be controlled by the literal dictionary meaning of the

word 'amend.16The word 'amendment' may have a variety of

meanings.17We have to ascribe to it in an Article of the

Constitution a meaning which is appropriate to the

function to be played by it in an instrument apparently

intended} to endure for ages to come and to meet the

various crisis to which the body politic will be

subject..

Amendment means.

1. An alteration or change for the better; correction of

a fault or of faults; reformation of life by quitting

vices.

2. In public bodies; any alternation made or proposed to

be made in a bill or motion by adding, changing,

substituting, or omitting.

3. (Law) Correction of an error in a writ or process.18

16 Carl. J. Friedrich, Constitutional Government and Democracy.p.13(1966 Edition)17 Sajjan SIngh v. State of Rajasthan, AIR 1965 SC 845.18 The collaborative international dictionary of English v.o 48

20

Justice B.H. Chowdhury said that -The term 'amendment'

implies such an addition or change within the lines of

the original instrument as will effect an improvement or

better carry out the purpose for which it was framed.19

2.6; amendment of constitution:

A constitution is meant to be permanent, but as all

changing situations cannot be envisaged and amendment of

the constitution may be necessary to adopt to the future

developments, provision is made in the constitution

itself to effect changes required by the changing

situations. When a legislature, which is a creature of

the constitution, is given the power of amendment, it is

a power given not to subvert the constitution, but to

make it suitable to the changing situations.20

.Justice Shahabuddin ahmed said that Amendment of the

Constitution means change or alteration for improvement

or to make it effective or meaningful and not its

elimination or abrogation. Amendment is subject to the

retention of the basic structure. The Court therefore has

power to undo an amendment if it transgresses its limit

and alters a basic structure of the Constitution.21

19 Anwar hossain Chowdhury v. Bangladesh 1989 BLd (spl) 1,para 19220 Mahmudul Islam-Constitutional Law of Bangladesh(second edition)p.392.21 Anwar hossain Chowdhury v. Bangladesh 1989 BLD (spl)1 para 378

21

Article 142 of the Bangladesh constitution gives power to

Parliament to amend any provision of the Constitution by

way of addition, alteration, substitution or repeal.

Addition, alteration, substitution or repeal is merely

modes of amendment and if the act done does not come

within the meaning of 'amendment', it will not be valid,

notwithstanding that all the procedural requirements have

been fulfilled. Amendment means a change in some of the

existing provisions of a statute22 and a law is amended

when it is in whole or in part permitted to remain and

something is added to, or taken from it, or it is in some

way changed or altered in order to make it more complete,

or perfect, or effective23 An amendment is not the same

thing as repeal, although it may operate as repeal to a

certain degree.

22 Sheridan v. Salem, 14 Or 32823 U.S. v.Lapp,244Fed 377;Crawford-The construction of statutes,

1940,p.170

22

Chapter: Three

Provision of the Amendment of Constitution

3.1) Amending process of the Constitution:

The Parliament is given the legislative power in Article

65 while the procedure of amending the constitution is

prescribed in Article 142 of the Constitution of the

People’s Republic of Bangladesh. An amendment to the

constitution may be made through a Bill passed in the

parliament by the votes of not less then two thirds of

the total members of the Parliament. There is however,

clause (1A) inserted in Article 142 by the Second

Proclamation Order No IV of 1978. This clause provided

for referendum in excess of two-thirds majority in cases

where the amending Bill intended to amend the preamble,

any of the Articles 8, 48, 56, 58, 80, 92A and 142. The

President shall refer the Bill to referendum before his

assent his given. This again was amended by the Act No

XXVIII of 1991, which omitted Articles 58, 80 and 92A

from the list.24

24 Jashim Ali Chowdhury lecturer Department of Law metropolitanuniversity published in metropolitan university journal Vol-2,N-1.p(161-171)

23

Article 142 starts with a Non-Obstante clause'" A non-

obstante clause is usually used ,in a provision to

indicate that' that provision should prevail despite

anything to the contrary in the provision mentioned in

such Non-Obstante Clause' (The Interpretation of Statutes

- Bind'ra, p949)25 In other words it indicates an idea

that the power to amend' the constitution Is not

controlled by any other provision in the constitution.

Art. 142 gives power to Parliament to amend any provision

of the Constitution by way of addition, alteration,

substitution or repeal. Addition, alteration,

substitution or repeal are merely modes of amendment and

if the act done does not come within the meaning of

'amendment', it will not be valid, notwithstanding that

all the procedural requirements have been fulfilled.

Amendment means a change in some of the existing

provisions of a statute1 and a law is amended when it is

in whole or in part permitted to remain and something is

added to, or taken from it, or it is in some way changed

or altered in order to make it more complete, or perfect,

or effective. An amendment is not the same thing as a

repeal, although it may operate as a repeal to a certain

degree.26

Art. 142 of the Constitution confers power on Parliament

to amend the Constitution. For such amendment there are

some procedural requirements. A Bill for amendment of the

25 Anwar hossain Chowdhury v Bangladesh 1989 BLD (Spl)1 AD 198 26 Mahmudul Islam. Constitutional law of Bangladesh. second edition. p.392

24

Constitution must contain a long title expressly stating

that it will amend a provision of the Constitution. It

was contended that the long title must specifically

mention which provision is sought to be amended,

otherwise the amendment passed will be void. The majority

decision of the Appellate Division is that the specific

provision need not be mentioned in the Bill and the

requirement will be fulfilled if the long title states

that certain provision or provisions is or are sought to

be amended27. No such Bill shall be presented to the

President for his assent unless it is passed by the votes

of not less than two-thirds of the total number of

members of Parliament. The President shall within seven

days of the presentation of the Bill after being passed

in Parliament with the

requisite majority assent to the Bill and if he fails to

assent within that time he shall be deemed to have

assented to the Bill. But if the Bill seeks to amend the

Preamble or any of the provisions of arts.8, 48, 56 or

142 the President shall within seven days of presentation

of the Bill for his assent cause it to be referred to a

referendum and if the majority votes in the referendum

are in favour of the amendment the President shall be

deemed to have assented to the Bill, otherwise the

President shall be deemed to have withheld his assent

from the Bill. The procedural requirements are mandatory

27 Anwar hossain Chowdhury v Bangladesh 1989 BLD (spl)1,para 411,415,608,and 615

25

and non-compliance of the requirements will render the

amendment void.28

3.2) Discussion about article 142(1A) of the

Constitution of Bangladesh:

TO borrow words from Justice Mustafa Kamal, some

provisions of the constitution are considered to be

'basic' while others may be termed as circumstantial. The

constitutional lawyers and judges may discern some

fundamental structural designs in a constitution as when

an architect views a building. Call it basic structures

or structural pillars or by whatever name they are there

(Constitution: Trends and Issues, p 14). By now this

fascinating doctrine of Basic Structure has become a

vibrant tool of judicial activism to protect the

constitutional edifice from ruination in hands of the

invincible parliamentary super majority. The substance of

the claim is that the structural pillars of the

constitution cannot be dismantled by parliament in the

name of amendment. It was planted strappingly in the

judicial culture of Bangladesh by famous Anwar Hossain

Chowdhury v. Bangladesh.29. A majority of 3:1 of the

Appellate Division of the Supreme Court struck down the

Constitution (8th) Amendment Act, 1988 establishing six

28 Mahmudul Islam. Constitutional law of Bangladesh. second edition. p.39129 Anwar hossain Chowdhury v Bangladesh 1989 BLD (Spl)1 AD 198

26

permanent benches of the High Court Division outside

Dhaka on the charge of destroying the unitary character

of Republic, a basic structure of the Constitution as it

was claimed.

Article 142(1A) the patent ills:

Clause (1A) was inserted in Article 142 by the Second

Proclamation (Fifteenth Amendment) Order, 1978 (Second

Proclamation Order no IV of 1978). It provided that the

renovated and express mandate of the people through

Referendum shall be required along side the 2/3 majority

in the House to amend some designated provisions of the

Constitution. Looking at the list of provisions specially

designated therein (Preamble, Articles 8, 48, 56, 58, 80

or 92A) it prima facie appears that General Zia couldn't

have trust enough on the servile Parliament to be '

established' through the Second Parliamentary Election.

To perpetuate the already settled omnipotent presidency

along with the philosophical distortion in the Preamble,

he needed something like clause (1A). Hence, Advocate

Mahmudul Islam put a sharp question mark over the

legality of this clause being an extra-constitutional

insertion Then it was Honorable Justice ABM Khairul Huq

who unveiled the secrets:

“Addition of clause (1A) was craftily made. In the one

hand the President and the Chief Martial Law

Administrator was not only merrily making all the

27

amendments in the Constitution of the People's Republic

of Bangladesh according to his own whims and caprices by

his order…….... but at the same time, made provision in

Article 142 itself in such a manner so that the amended

provisions cannot be changed even by the two thirds

majority members of the parliament short of a referendum.

In short by executive order of one person, amendment of

the Constitution can be made at any time and in any

manner but even the two thirds majority of the

representative of the people cannot further amend it. We

are simply charmed by the sheer hierocracy of the whole

process”30

Article 142(1A): The latent cure:

In spite of the patent ills in Clause 1(A), looked upon

from a different angle, it may reveal a latent cure. Just

consider the 4th Amendment to the Constitution. Many of

us, including me, firmly believe that it was a right but

much belated step. Yet this 4th Amendment has blemished

Bangabandhu's glorious patriotism and devotion towards

the cause of his countrymen to a considerable extent, we

may like it or not. It provided a ready tool in the hands

of the anti-liberation force to propagate against the

Patriot. It was a Parliament elected in a multi-party-

democracy that attempted to introduce a one party system.

30 The 5th Amendment Case 14 BLT (Spl) p199).

28

Theoretically it is always a good question to ask. Had

the people mandated the parliament to destroy the very

system under which it took birth? In 1975 there was no

parliamentary supremacy in Bangladesh. Given the

situation it might have been the wisest on the part of

Bangabandhu to seek a fresh mandate from the people on

his new political standing before starting the second

revolution. I'm sure the people of this country would

never turn back on him.

Now come to Article 142(1A). By requiring Referendum in

certain cases, didn't it subconsciously put a clog on a

parliamentary super-majority acting in an unaccountable

fashion? We should not forget that this is a country

where the winners habitually tend to do everything they

wish until they are de-elected in the next election!

Article 142(1A) healing the dilemmas of 'Basic

Structure':

The Basic Structure carries with it some inborn fogginess

and controversies. In Golak Nath v. State of Punjab AIR

1967 SC 1643 the Indian Supreme Court candidly conceived

the idea that there is a distinction between plenary

legislative power and constituent power of parliament.

29

Parliament's plenary legislative power is subject to

judicial review while the constituent power is not. Hence

the Court may invalidate a law but not a constitutional

amendment. This again has been sharply rejected in

Kehsavananda Bharati v. State of Kerala (1973) in India31.

and Anwar Hossain Chowdhury v. Bangladesh (1989) in

Bangladesh32. Now the Court, the guardian of the

Constitution, is not ready to leave the constitutional

edifice vulnerable at the hands of the Parliament.

But should it not mean that some principles would be so

permanently fixed to allow the dead rule the world from

the grave? Do the ideologies of one generation bind the

later? Then where to accommodate the supremacy of the

people? What to do in case the people overwhelmingly

support an amendment violating the basic structure? So

many people in Bangladesh still believe that

decentralization of the Supreme Court in 1988 was a right

step! Here the judiciary not only trumps over the

'general will of the people' expressed through an elected

legislature, but also over the 'absolute will of the

people' on a particular issue. Moreover the Judiciary

gets a free hand in defining 'basic structure' making the

concept a fluctuating one and hence bad. The Judiciary

may come out with new 'basic structures' whenever

convenient. It is indeed the case in India.

31 Keshavananda Bharati v. Kerala, AIR 1873 SC 146132 Anwar hossain Chowdhury v Bangladesh 1989 BLD (Spl)1 AD 198

30

Article 142(1A) nicely answers those dilemmas. In one

sense Article 142(1A) provides a sort of constitutional

recognition to the judicial claim of 'basic structure'.

By this the Constitution itself recognizes that there are

something which are 'basic'33 (B.H Chowdhury J in Anwar

Hossain Case, Para 256) and these need higher protection

than the bulk so that Parliament may not manipulate them

in its whim and caprices. In the other sense, it cures

the iron fist immutability of 'basic structures' by

saying that basic structures are particularly hard to be

amended but not un-amendable. Now inter-generational

adaptation is reconciled with the need for stability.

Again,

The basic structures are concretized by specification in

the Constitution itself.

No doubt Article 142(1A) is an illegal inclusion in the

Constitution by an illegal authority through an illegal

exercise of power. After the Appellate Division ruling on

the 5th Amendment case it is now almost at the vanishing

point. The Government is bound to re-print the

Constitution deleting this, if Appellate Division so

directs. But whatever motive the then military

'President' had in his mind, the Clause as it stands now

may serve a very useful purpose of safeguarding

constitutional fabric from the fanaticism of a winner-

takes-all politics. The government is planning to consult

the Law Commission on 5th Amendment issue. The Commission

33 Anwar hossain Chowdhury v Bangladesh 1989 BLD (spl)1,para.256.

31

may seriously consider recommending adapted re-insertion

of the gist of Article 142(1A) de novo by the incumbent

Parliament.34

3.3) Necessity of amendment of provisions:

Dr. Herman Finer defines constitution as the process of

amendment because in his view to amend is to deconstitute

or reconstitute. He considers the amending clause to be a

so fundamental to a constitution that he calls that

clause the constitution itself.

Framers of our constitution therefore thought it wise to

incorporate Provision for amendment of the constitution

and they have done it with a view to overcome the

difficulties which may encounter in future in the working

of the constitution. No generation has monopoly of wisdom

nor has it a right to place fetters on future generation

to mould the machinery of government according to their

requirements. If no provisions were made for the

amendment of the constitution, the people would have

recourse to extra- constitutional method like revolution

to change the constitution.35

34 Jashim Ali Chowdhury. Negotiating Article 142(1A) for the 'Basic Structure’ the daily star. law and our rights published on 6 march 2010.

35 A.K.M.Shamsul Huda, The Constitution of Bangladesh, second edition,1997,volume-2.p.963.

32

Chapter: Four

Limitation of amendment of

constitution

4.1: Limitations of power of the Parliament on

Constitutional amendment:

The power of amendment of the Constitution under Article

142 is a power under the Constitution and not beyond it

and is not an unlimited power. The concept that

Parliament has unlimited power of amendment is

inconsistent with the concept of supremacy of the

Constitution embodied in the Preamble and Article 7 of

the Constitution. Article 7 itself is basic. Fundamental

and unalterable. it is a question of construction of the

word "amendment" which has to be interpreted in the

context and scheme of the whole Constitution. Read with

the Preamble and Article 7, it means that there is an

implied limitation on the power of amendment, that the

basic structure of the Constitution cannot be altered or

damaged, and that 'amendment' can only make the

Constitution more "complete. Perfect or effective"36.

In amending the constitution, parliament passes a law,

but is the power unlimited? The appellate divisions by a

majority judgment answer the question in the negative.36 Justice Mustafa kamal.Bangladesh constitution: trends and issue, reprint 2001.p.95.

33

Relying on the preamble and article 7 of the constitution

it declared the 8th amendment of the constitution.

Amending article 100 along with consequential amendment

of article 107 of the constitution as ultra vires and

invalid. Even the amendment of the constitution cannot

run counter to the preamble and article 7 of the

constitution.37

In Anwar Hossain Chowdhury v Bangladesh case, the Court

emphasized on the inherent limitation on the power of

amendment. It was assumed that amending power is a

limited power, by express provisions or necessary

implications. Justice Shahabuddin Ahmed made a difference

between ‘adoption of a new constitution’ and ‘the

derivative power of amending the constitution’ and having

regard to the term ‘amendment’ took the view that

amendment of the Constitution does not mean its

abrogation or destruction or a change resulting in the

loss of its identity and character.38

The contention that ‘amendment’ does not mean fundamental

change resulting in the losing of identity may be

disputed at least on three grounds. First, if the

fundamental character of a constitution can never be

changed, should it not mean that a particular generation

is governing the future from the grave particularly when

‘this Constitution does not contain any provision to

37 Justice Mustafa kamal.Bangladesh constitution: trends and issue, reprint 2001.p.24.38 Anwar hossain Chowdhury v Bangladesh ,1989 BLD (spl) 1.para.388

34

repeal or replace the constitution’ Secondly, the

presence of Article 142 (1A) along with the absence of

provision for ‘replacing or repealing’ the constitution

makes it clear that there is no other way to effect

change, either trivial or drastic, in the Constitution

except the Article 142 procedure.

There is no provision for establishing a Constituent

Assembly to overhaul the Constitution if necessity arise

thirdly, our constitution is ‘the solemn expression of

the will of the people’ (Article 7). Now think of a

situation when the people of Bangladesh think of a

completely new version of it with fundamental changes in

the philosophy and structure of the Constitution. Any

such effort will not be tenable under the scheme of Basic

Structure of the present Constitution as there are some

basic features which according to Anwar Hossain are not

amendable in any case (Para 255). Should we construe the

intention of the framers of the Constitution in this way?

An unamendable constitution is the worst tyranny of time.

Therefore, the argument of inherent limitation is a

misnomer to establish that there are some provisions,

which can never be changed. Constitution is particularly

hard to amend but not unamendable.39

On the withdrawal of the Martial Law, in the Eighth

Amendment case ( Anwar Hossain Chowdhury vs Bangladesh :

39 Jashim Ali Chowdhury .Lecturer Department of Law Metropolitan University. published in Metropolitan university journal Vol-2 N-1.p(161-171)

35

1989 BLD (Spl.1), it was challenged that four permanent

benches of the High Court Division set up by the Martial

Law Order number 11 of 1982 were unconstitutional. It was

submitted that the basic structure of the Constitution

could not be altered by an amendment on the ground that

the Parliament had not the unlimited power of amending

the Constitution if the amendment was inconsistent with

concept of "the supremacy of the Constitution" embodied

in the Preamble and Article 7 of the Constitution.40

On the question of .basic structures'. B. H. chowdhury.

J. has listed 2l 'unique features' of the constitution

and held that -some' (without specifying which) of the

said 2l features are the basic features of the

constitution and they are not amendable by the amending

power of parliament.41

By a majority judgment (3:1), the Appellate Division of

the Supreme Court agreed with the submission, thus firmly

establishing the doctrine that the "basic structure of

the Constitution" cannot be altered or amended. The

Constitution is not an ordinary legislation. It is a

basic structure how a country is governed. It reflects

history, ethos, and aspirations of people of a country.

There are certain basic principles on which a

40 Visit on http///www.the daily star.net/law/2004/06/02/index.htm4141 justice Mustafa kamal.Bangladesh constitution: trends and issue,reprint 2001.p.96.

36

constitution is founded and these principles must be

preserved.42

4.2: Implied limitation on power to the amendment

o f constitution:

A.T.M. Afzal. Justice in 8th amendment case held that he

rejects the doctrine of implied limitation to the power

of amendment. ..Who is to decide and how to decide when

the Constitution-makers themselves in there wisdom chose

not to distinguish. what are to be considered as

transcendental in limitation to power to amend the

constitution. constituent power is different from the

power to amend ordinary law legislative power The

validity of an ordinary law when questioned is to be

justified by reference to a higher law. but the validity

of a constitutional amendment can not be-justified by

reference to another higher law. The Constitution

generates its own validity.43

A.T.M. Afzal. J. Therefore rejects the contention that

the validity of a constitutional amendment to be tested

in the touchtone of the article 7.He is opinion that in

our constitution no article or clause is unamendable.The

limitation of article 142 relates only to procedure for

42 Barrister Harun ur Rashid. The Daily Star Law and Rights published on 02/06/200443 justice Mustafa kamal.Bangladesh constitution: trends and issue, reprint 2001.p 104

37

amendment and not substantive in the sense that no

article is beyond the purview of amendment.44

It is, therefore, clear that there is no express

limitation on the power of the Parliament to amend any

provision of the constitution. Art- !42 "restrict only

the procedure" or mode, "manner and form required for

amendment but not the kind or the character of the

amendment that may be made.45

In 8th amendment case the state argument that the makers

of the constitution have imposed no limitation on the

power of amendment provision" of the constitution. The

amending power cannot be limited by some vague doctrine

of repugnancy to the preamble and Article 7. The argument

that parliament cannot change the basic structure of the

constitution is untenable. There cannot be any implied

limitation to parliament’s power of amendment of the

constitution. The power of amendment under Article 142 is

a constituent power, not an ordinary legislative power.46

In the case of osborn v. Bank of united states(r)"

Marsharl c J.found 'implied limitation' on the power of

state legislature to make any law taxing any

'instrumentality' of the Federal Government although

there was no such express limitation or prohibition.47

44 justice Mustafa kamal.Bangladesh constitution: trends and issue, reprint 2001.p.10445 Anwar hossain Chowdhury v Bangladesh, 1989 BLD (AD) p.198.46 Mahmudul Islam, constitutional law of Bangladesh, second edition,2002,p.402.

38

In Keshava Nand Bharati vs. state of Kerala the majority

Judges(seven Judges) held that the amending power does

not include the power to destroy or abrogate the 'basic

structure' or 'frame work' of the constitution. The

minority (Six Judges, A.N. Roy, Chandra Chud,Mathew,

Dwivedi, and palekar, JJ.) held that there are no

limitations, express or implied on the amending power.

Thus the court by majority of seven to six held that the

parliament has wide powers of amending the constitution

and it extend to all the Articles of the constitution of

India, but the amending power is not unlimited and does

not include the power to destroy or abrogate the 'Basic

features' or "frame work' of the constitution. There are

implied limitations on the power of amendment under

Article 368 of the constitution of India. Within these

limits, Parliament can amend every Article of the

constitution of India. Whether there are implied

limitations on the amending power or not would depend

upon the interpretation of the word "Amendment"48.

A.N. Roy, J. observed, "The power to amend is wide and

unlimited. The power to amend means the power to add,

alter or repeal any provisions of the constitution. There

can be or is no distinction between essential and

unessential features of the constitution to arise any

impediment to amendment of essential features. Parliament

47 quoted from the judgment of shahabuddin ahmed justice. in Anwar hossain v Bangladesh 1989 BLD (spl) 1.p.136.48 A.K.M.Shamsul Huda.the constitution of Bangladesh, volume-2 ,firstedition 1997.p.978.

39

in exercise of constituent power can amend any provisions

of the Constitution.49

In a dynamic and ever changing Society and in the light

of the observations and opinions of the jurists quoted

above and in view of the unambiguous meaning of the

Article itself the doctrine of implied imitation may not

be applicable in the interpretation and construction of

the amending power under Art. 142 of our constitution.

AII provisions of the constitutions are amendable by way

of addition, alteration, substitution or repeal by Act of

Parliament. There is no built-in-limitation or inherent

limitation in any provision of the constitution- It is,

therefore, in the interest national progress and

prosperity in a fast changing society there is no need to

endeavor to invent or imagine 'built-in-limitation' which

is not there. In the case of Anwar Hossain v. Bangladesh

A.T.M. Afzal. J. observed, "The theory of implied and

inherent limitation could not be allowed to act as a boa-

constrictor to the clear and unambiguous power of

amendment".50

4.3: Amendment made through referendum:

In the case of some provisions, namely, the Preamble.

Arts. 8,48,56 and Art. 142 itself further special and

rigorous procedures have to be followed as provided in

Sub-Art. (1A), (18) & (1C) of Art. 142. if a Bill is

49 Ibid.p.979.50 Ibid, p.981.

40

passed for amendment of any of these provisions 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. on the day on which the result

of the referendum conducted in relation to a Bill under

this article is declared, the President shall be deemed

to have assentedto the Bill, if the majority of the total

votes cast are in favour of the Bill being assented to ;

or withheld assent there from, if the majority of the

total votes cast are not in favour of the Bill being

assented to.51

The amending powers of the parliament remains unabridged.

The framers of the constitution of Bangladesh . were

mindful of the need for the sovereignty of parliament,

elected by universal suffrage, to enable it to ensure

national progress. so for replacing presidential system

a basic structure and for reintroduction of parliamentary

system another basic. structure, Bangladesh parliament

passed the Twelfth Amendment Bill on august 6,1991.and a

referendum was held on september 15,1991 in order to

enable the president to assent to the Bill' The people

gave their verdict in favour of the parliamentary system

and in pursuance of the result of the referendum the

president gave his assent to the Bill of September 18,

1991.thus the art,. II of the constitution has been

51 A.K.M.Shamsul Huda.the constitution of Bangladesh, volume-2 ,first edition 1997 . p.966.

41

amended, and in part IV for chapters I and II the new

chapters 1,11 and have been substituted with effect from

18'9'1991' Arts' 48-b58 of the .constitution been

replaced by new Arts' 48-58' Arts' 59 and 60 have been

incorporated afresh with the insertion of chapter III in

part IV constitution. Art. 66 has been amended,art. 70

has been amended art 70 is substituted, 72, 73A, 88, 89 ,

have been amended, Art. Has been omitted. Art 109,119,

122 and 123 have been amended .art 124 has been

substitute. Amendment of art. 125, 141A, 141C, 142, 145A,

147, 148, 152, third schedule and fourth schedule have

been made by the constitution(Twelfth amendment) Act

1991.this amendment Act is not liable to be declared void

under any provision of the constitution.

After an amendment is passed by the Parliament in its

constituent power it becomes a part of the Constitution

and the validity of an amendment of the Constitution

cannot be examined on the touch stone of Art.7of the

constitution. Fact Is that the basic

structureconstitution is changed. No challenge. The

Nation has accepted the amendment. It is proved that no

structure is permanent, be it basic or essential.52

While launching Basic Structure, the Appellate Division

did not make any distinction between amendment made by

two thirds majority in the House and amendment effected

by the House plus referendum. This is very much important52 A.K.M.Shamsul Huda.the constitution of Bangladesh, volume-2 ,firstedition 1997,p.971

42

in the sense that though the 8th Amendment was not

effected through a referendum, the pronouncement of the

Court at least theoretically runs the risk of affecting a

popular amendment. Only one of the judges, B H Chowdhury

J made reference to the Martial Law Amendment of Article

142 rendering the Preamble and some other provision

unamendable without referendum to the people . He made

that reference only to establish that the constitution

itself recognizes something as ‘Basic’ over which the

majority was pondering. Yet by analogy of the phrase

‘unamendable without referendum to the people’

.

But there is a tendency to camouflage the Article 142

(1A) as whole in the basic structure talk. It is evident

when Mahmudul Islam, a pro basic structure scholar,

criticizes even the elusive reference made by B H

Chowdhury. To him such a reference is misleading. As

basic structure is an issue of original dispensation, it

cannot depend on the interpretation of an amended

provision.53.But total camouflage of Article 142 (1A) or

its spirit in Basic Structure discourse will not be

logically correct. A distinct approach to amendments

under 142 (1A) procedure is warranted at least on three

grounds: First, even from the perspective of

‘originalism’ (the ‘romantic theory’ of literature

53 Mahmudul Islam, constitutional law of Bangladesh, second edition,2002,p.394

43

wherein, the meaning intended by the author of a text is

privileged and is placed above all the contesting

meanings that are argued) it is well evident that while

the concept of limited government in Article 7, upon

which Anwar Hossain resides, is intended for the

different functionaries of the state, the constitution

being the expression of their will, the people’s right to

amend any provision of the constitution by way of

addition, alteration, substitution or repeal is

unlimited.

Secondly, the plea of amending power to be a constituent

power mentioned in the previous section nicely fits with

popular amendment under Article 142 (1A). It is curious

to note that while amending the Constitution it is not

the Parliament who exercises the constituent power.

Article 142 of the constitution merely lays down the

amending procedure. It does not confer upon the

parliament the power to amend the Constitution. The

amending power of parliament arises from other provision

of the Constitution (Article 65) which gives it the power

to make laws i.e., plenary legislative power.54 Rather a

plain look on the Preamble of the Constitution will

locate the constituent power elsewhere. The Preamble

imposes a sacred duty upon the people of Bangladesh to

safeguard, protect and defend the constitution and

maintain its supremacy ‘as the embodiment of the will of

the people of Bangladesh.55. The ‘constituent power’ is

54 Subba Rao CJ in Golak Nath v. State of Punjab AIR 1967 SC 164355 (A.B.M Kahirul Haque J in Moon Cinema Case Page 42

44

here with the people of Bangladesh .The Parliament did

not and does not give us the Constitution. It is we, the

People of Bangladesh who ‘adopt, enact and give to

ourselves’ the Constitution. So the constituent power

resides exclusively in people. The parliament’s

constituent power, if it has any, is merely derivative

because ‘all powers in the Republic belong to the people,

and their exercise on behalf of the people shall be

effected only under, and by the authority of, this

Constitution’ (Article 7(1)). The logical conclusion that

follows is that amendment made by referendum, being not

hit by Article 7 and being in the exercise of constituent

power, is not subject to judicial review; whereas

amendment made by Parliament in the exercise of

derivative power is subject to judicial review.

Thirdly, distinct approach to popular amendment will

answer also to the controversy regarding the Twelfth

Amendment. The Appellate Division argued that the past

amendments altering the basic structures of our

constitution provides no grounds for such amendments to

be made in future.56

.The Twelfth Amendment turned the Presidential form of

government into a Prime Ministerial one. The Presidential

form of government was a basic structure of the

Constitution then. Though the Prime Ministerial from of

government was the result of democratic revolution of the

56 Anwar hossain Chowdhury v Bangladesh, 1989 BLD (AD) p.213.

45

three alliances (Islam 407), it would stand void as per

Anwar Hossain. But how far it sounds rational to

invalidate the Twelfth Amendment.57

Chapter:

Five

Constitution amendment merits and

demerits

The Constitution (Fourteenth Amendment) Bill, 2004:

Merits and demerits:

After the birth of Bangladesh as a sovereign country, the

then Government established a Constituent Assembly to

frame a Constitution for the newborn country. The said

Assembly framed the Constitution within the shortest

possible time and adopted and enacted the same on the 4th

day of November 1972.

In total 13 amendments have so far been made in the

Constitution of the Peoples Republic of Bangladesh. The

first amendment was made in 1973. The amending Act called

Constitution (First Amendment) Act, 1973 provides,

amongst others, that no law providing for detention,57 Writer jashim ali Chowdhury.Lecturer Metropolitan University. published in Metropolitan University, journal Volume-2, Number -1 p.161-170.

46

prosecution, or punishment of any person, who is a member

of any armed or defence or auxiliary forces or who is a

prisoner of war, for genocide, crimes against humanity

shall be deemed void or unlawful on the ground that such

law or provision thereof is inconsistent with or

repugnant to, any of the provisions of the Constitution.

The second constitution amendment was also made in 1973

by the Act called Constitution Second Amendment Act,

1973. This amending Act provides, amongst other things,

that no person who is arrested shall be detained in

custody without being informed, as soon as may be, of the

grounds for such arrest, nor shall be he denied the right

to consult and be defended by a legal practitioner of his

choice. If further provides that every person who is

arrested and detained in custody shall be produced before

the nearest magistrate within a period of twenty-four

hours of such arrest excluding the time necessary for the

journey from the place of arrest to the court of the

magistrate, and no such person shall be detained in

custody beyond the said period without the authority of

the magistrate.

The third constitution amendment [The Constitution (Third

Amendment) Act, 1974] refers to the agreement between the

Government of India and Bangladesh concerning demarcation

of land boundary between the two countries.

The fourth amendment was made by an Act called (Fourth

47

Amendment) Act, 1975. This amending act provided, amongst

other things, for the establishment of presidential form

of government in place of parliamentary from. It further

authorized the President to establish only one political

party called "National Party" by dissolving all political

parties in the country. The unique characteristic of the

one party system was that any person in the service of

the Republic made qualified to be a member of that

National Party.

The fifth constitution amendment Act [Act no II of 1975]

has protected, amongst others, all Proclamation, Martial

law regulations, orders and other laws made during the

period between the 15th August, 1975, and the 9th April,

1979.

The sixth constitution amendment Act provided that if a

Vice-President is elected as President or if a President

or a Vice-President is elected as Member of Parliament,

he shall not be qualified to be member of Parliament

until he ceases to hold office as President or Vice-

President.

The Constitution (Seventh Amendment) Act 1986 raised the

age of retirement of a Judge from 62 to 65 years. It has

further protected all the Proclamations, Proclamation

Orders, Chief Martial Law Administrators Orders, Martial

Law Regulations, etc issued during the period from 24th

March, 1982 and the date of commencement of the

48

Constitution (Seventh Amendment) Act, 1986.

The Constitution (Eight Amendment) Act, 1988, provides,

amongst others, that the state religion of the Republic

is Islam, but other religion may be practiced in peace

and harmony in the Republic. It further provided that

"Bangla" shall be inserted in the Constitution in place

of "Bengali." It has also provided that the word "Dacca,"

shall be substituted by the word "Dhaka." It further

provided that the High Court Division and the Judges

thereof should sit at the permanent seat of the Supreme

Court and at the seats of its permanent Benches. It also

provided that the High Court Division shall have a

permanent Bench at Barisal, Chittagong, Comilla, Jessore,

Rangpur and Sylhet.

The Constitution (Ninth Amendment) Act, 1989 provided

that the Vice-President of the Republic shall be elected

in accordance with the law by direct election for a

period of five years. If the Vice-President enters upon

his office on any day after the date of entering upon the

office by the President, the term of office of the Vice-

President shall expire on the date of which the term of

office of the President expires.

The Constitution (Tenth Amendment) Act, 1990 provided for

the reservation of 30 seats for women members in

Parliament for a period of 10 years beginning from the

date of first meeting of the 5th Parliament and the

49

election to these reserved seats shall be held through

electoral college.

The Constitution (Eleventh Amendment) Act, 1991 provided

for the return of Chief Justice Shahbuddin Ahmed to his

original position in the Supreme Court of Bangladesh. He

was also allowed to count the period of services rendered

by him as the Acting President as the services in the

office of the Chief Justice of Bangladesh for the purpose

of leave, pension, etc.

The Constitution (Twelfth Amendment) Act, 1991, provided

for establishment of parliamentary form of government in

place of presidential form. It has also determined the

mode of election to the office of President and other

terms and conditions of his service as such.

The Constitution (Thirteenth Amendment) Act, 1996 has

provided for the establishment of a Non-Party Caretaker

Government for conducting general election freely, fairly

and impartially.

The Government has since introduced a Bill proposing

fourteenth amendment in the Constitution. This Bill

through one of its proposal seeks to insert a new article

namely 4A after the existing article 4 of the

Constitution. Clause (1) of this new article proposes to

provide that the "Portrait of the President shall be

50

preserved and displayed at the offices President, the

Speaker and all embassies and missions of Bangladesh

abroad,". Clause (2) of the said article proposes to make

provisions to the effect that the Portrait of the Prime

Minister, shall be preserved and displayed at the offices

of the President and the Speaker and in head and branch

offices of all government and semi-government offices,

autonomous bodies, statutory public authorities,

government educational institutions, embassies and

missions of Bangladesh abroad.

A close scrutiny of the aforesaid proposed provisions

reveals certain anomalies. Firstly, no provision has been

proposed for the preservation and display of the Portrait

of the Prime Minister in his office though a proposal is

there to preserve and display the same (Portrait of Prime

Minister) at the offices of the President and the

Speaker. Further, proposal has not also been made in the

Bill for preservation and display of the Portrait of the

President at the office of the Prime Minister. Secondly,

though the President is the head of the state, the Bill

does not propose for the display of his portrait at the

head and Branch offices of all government, semi-

government offices, autonomous bodies, statutory public

authorities and government educational institutions. The

proposals contained in the Bill for effecting amendments

in the Constitution do not, therefore, seem to be sound,

decent and just. Decency, justice and fair play demand

51

that no law should be enacted that might be derogatory to

the person holding the highest office in the Republic.

In this context it seems relevant to mention here that

the preservation and display of portraits of the Head of

the State as well as the Head of the Government has

hitherto been regulated by the executive order of the

Government. This has so far worked well. There is,

therefore, hardly any necessity of making any

constitutional provision in this behalf disrespecting the

traditional method. The considered view on the proposal

for constitutional amendment is that it will

unnecessarily create political controversy.

The Bill introduced in the House further proposes

insertion of clauses (1A) and (1B) under clause (1) of

article 59 of the Constitution. Clause (1) seeks to

provide that the elected persons of any local government

shall not continue in office after the expiration of the

term fixed by law and during the period from the date

next after such expiration of the term till the date on

which a new body reconstituted the local government of

that administrative unit shall vest a in public officer

appointed by the Government for the purpose. Further,

Clause (1B) seeks to provide that election shall be held

within ninety days after the date of such expiration to

reconstitute the body with elected representatives.

The existing provisions under clause (1) of article 59 of

52

the Constitution provides for running the local

government of every administrative unit of the Republic

by a body constituted with elected representatives. This

is fine; but if this provision is to be respected, the

election to a local body has to be held within two or

three months ahead of the date of expiry of the term of

the concerned local body. In such a case, the incumbent

elected representatives in power shall have opportunity

to manipulate the results of election in their favour.

So, in the interest of free, fair, and impartial

election, the proposal for running the local government

by a public officer for a period of three months seems to

be in line with the holding of general elections to

parliament under the Non-Party Care-Taker Government.

This proposal seems to be in order and deserve

consideration.

The Bill in question also contains a proposal for

reservation of forty-five seats for women members in

Parliament for a period of ten years beginning from the

next Parliament. It further proposes to fill up those

seats by the votes of three hundred members of Parliament

elected from the general seats.

In the context of the aforesaid proposal, it is mentioned

that the proposal for reservation of 45 seats in

Parliament and filling of those seats by the votes of

three hundred members elected to Parliament from the

general seats has already been rejected by the

53

organizations representing the interests of women folk of

the country. Currently, there are three separate demands

from three separate groups of the women activists. One of

the groups is demanding reservation of 150 seats in

Parliament while another group is pressing for 100 seats.

There is still another group who pleads for only 64 seats

i.e. one seat for each district. But all the groups are

united on the mode of election. They are persistently

demanding direct election to the reserved seats on the

ground that indirect election is not only undemocratic,

but also makes the women members accountable to 300

members of Parliament elected from the general seats

instead of making them accountable to the people of the

constituency they will represent.

In addition, the procedure proposed in the bill for

election of women members to reserved seats suffers from

several serious defects. Firstly, it safeguards the

interest of only the women activists of the major

political parties at the cost of the activists of the

minor political parties and the independent candidates.

Secondly, the proposal is inconsistent with the

principles of democracy and universal suffrage. Thirdly,

the proposal is in violation of the pledge made by the

major political parties on the eve of the last general

election.

The proposal for holding election to reserved seats

through electoral college formed with 300 MPs from

54

general seats has apparently been made on the ground that

direct election will, in addition to creating problem of

campaign due to vastness of the constituency, create

funding problem of unbearable magnitude for the women

candidates. If this is the ground for holding election

through electoral college, then it can be said that the

ground is not well founded. If the history of 1954

general election in the then East Pakistan (now

Bangladesh), is traced, it will be found that 10 seats

were reserved for women in the Legislative Assembly of

the then East Pakistan and those seats were filled in by

direct election on the basis of separate electorate. At

this time, the communication system was very poor; the

financial condition of the women was unimaginable;

politically and educationally they were much backward.

Notwithstanding all these disadvantages, the women fought

that election very successfully.

The country, at the moment, is connected with an

efficient net-work of communication system; the

percentage of literacy has by this time improved

considerably; the financial and social conditions of the

probable women candidates have also improved many times;

politically they are now well trained and sufficiently

experienced. There is, therefore, no justifiable reason

for filling up the reserved seats through indirect

election against the will of the women folk who represent

55

50% of total population of the country.

In view of the facts narrated hereinbefore, the proposal

for indirect election has created a widespread impression

that this is a calculated measure of the ruling party to

accommodate their women activists in the Parliament to

create a vote-bank for their convenient use as and when

occasion arises. The proposal for distribution of the

members elected to the reserved seats among the political

parties in proportion to their representation in the

Parliament is nothing but a clever attempt to cool down

probable agitation against the proposal by the major

opposition block.

In the circumstances, it appears to be fit and proper for

the ruling party to honour their commitment for

increasing the number of reserved seats and filling up

those seats by direct election.

Under the existing arrangement, the members-elect of

Parliament are to make and subscribe an oath before the

outgoing Speaker and in his absence, before the outgoing

Deputy speaker and in the absence of both of them before

a person designated for the purpose by the outgoing

Speaker. The proposal made in the Bill in this behalf is

that if, within three days next after publication through

the official gazette of the result of a general election

of members of parliament, the person specified for the

purpose or such other person designated by that persons

56

for the purpose, is unable to or does not, administer

oath to the newly elected members of Parliament, on any

account,

The proposal in the Bill for involving the Chief Election

Commissioner in matter of administering the oath to the

members-elect seems to be in order and be helpful in

solving the problem if arises due to the inability of

administering the oath to members-elect by the outgoing

Speaker or the Deputy Speaker or by a person designated

by him.58

58 Burhanuddin Ahmed, former Deputy Secretary of Election Commission., The dailystar, Law and our Rights, published on 03/04/2004.

57

Chapter

: Six

Doctrine of basic structure of

constitution

6.1) Doctrine of basic structure of the

constitution:

Basic structures of the constitution mean structural

pillars on which the constitution rests and that if these

structural pillars are demolished the entire

constitutional edifice will crumble.59

The basic structure doctrine applies only to the

constitutionality of amendments and not to ordinary Acts

of Parliament, which must conform to the entirety of the

constitution and not just to its basic structure.60

Sovereignty of the people, supremacy of the constitution

as the solemn expression of People's will, unitary

character of the state, as an independent sovereign

Republic, Democratic form of Government, separation of

powers between the three organs of the state, Executive,

legislature and judiciary along with the rule of law and

judicial review,

59 A.K.M.Shamsul Huda, The Constitution of Bangladesh, First edition,1997.volume-2.p.974.60 Visit on http://en.wikipedia.org/wiki/Basic_structure#Extending_the_doctrine_.281981.29

58

Independence of judiciary and Fundamental Human Rights

are the basic Features of the constitution. Mr. Justice

B.H. chowdhury J, (as he then was) enumerated as many as

21 (twenty one) unique features of B Bangladesh

constitution.61

It is said that "the doctrine of basic structure as

applied by the Indian Supreme Court had originated from a

decision of "Chief Justice Coke's famous fourth agreement

in Bonham's case, 8 C.O. Rep 114(1610), arguments of

counsels made on the 18th amendment cases In U.S.A. and

particularly to Chief Justice Kennedy's dissent in Royan v.

Lennon 1933 IRIT70.62 this principle was possibly followed by

the then Dhaka High Court which was upheld in appeal by

the Pakistan Supreme Court"63 "

... franchise and form of government are fundamental

feature of a Constitution and the power conferred upon

the Presidency by the constitution Pakistan to remove

difficulties does not extend to making an alteration in a

fundamental feature of the constitution'"

Now what is meant by the doctrine of basic structure of

the Constitution? This doctrine is not a well-settled

principle of constitutional law; it is rather a recent

trend in and a growing principle of constitutional61 A.K.M.Shamsul Huda, The Constitution of Bangladesh, First edition,1997 volume-2.p.974.62 quoted from 1989 BLD (Spl) 1. Issue,Anwar hossain chowdhury V.Bangladesh p.168,judgment per M.H. Rahman J followed from Rajeevdhavan,s a basic structure doctrine- A foot not comment- Indiaconstitutional Trends and issues (1978) Bombay.63 Fazlul Qader chowdhury V. Abdul Huq,PLD 1963 SC 486-18 DLR 69.

59

jurisprudence' As M' H' Rahman' J' says in the 8th

Amendment case that the doctrine 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 deliberation on the Bill for amendment.64

The concept of basic structure is very wide, and varied

in nature. The supreme court of India declared, "The

principle of free and fair election" being the essential

postulate of democracy is a part of the basic feature of

the constitution.65 Some of the following have been

churned from the judgments of the supreme court of India

as the basic features which are not amendable:

(i)Democratic form of Government.66

(ii) Secular form of the Government.67

(iii) Federal character.68

(iv) The two Houses of the parliament.69

(v) Independence of the Judiciary.70

64 Anwar Hossain chowdhury V. Bangladesh, 1989 BLD Spl.1 Para 435.65 Indira Gandhi V. Raj Narain,AIR 1975 Sc 2299.66 Keshavananda Bharati v. Kerala, AIR 1873 SC 146167 Keshavananda Bharati v. Kerala, AIR 1873 SC 146168 Ibid.69 Ibid.70 S.P. Gupta v. Union of India 1982 Sc 149.

60

(vi) Supremacy of Constitution.71

(vii) Rule of Law.72

(viii) Objectives specified in Preamble.73

(ix) Judicial Review.74

(x) Sovereign Democratic Republic form of Government75.

(xi) Equality before Law.76

(xii) Free and Fair Election.77

According to some jurists in Bangladesh the following

are said to be the basic structures or features of our

constitution:

(i) Supremacy of the Constitution'

(ii) Republican and Democratic form of Government and

Sovereignty of the People and the Country'

(iii) Unitary and Republican character of the State and

Government.

(iv) Separation of Powers between the Legislature' the

Executive and the Judiciary'

71 S.P. Gupta v. Union of India 1982 Sc 149 72 Ibid.73 Ibid.74 Menerva Mills Ltd v. India AIR 1980 SC 177975 Indira gandhi V. Raj Narain,AIR 1975 Sc 229976 Menerva Mills Ltd v. India AIR 1980 SC 177977 Indira gandhi V. Raj Narain,AIR 1975 Sc 2299

61

(v) Independence of Judiciary'

(vi) Rule of Law'

(vii) Judicial Review'

(viii) The Unity and Integrity of the Nation'

(ix) Supremacy of the Constitution'

(x) The dignity of the individual secured by the various

freedoms and fundamental rights in part III and the

directions to build a welfare state contained in part of

the Constitution.

The above structures are built on the foundation i.e. the

dignity and the freedom of individual. This is of supreme

importance. In exercise of the power under Art. 142 the

constitution cannot be destroyed or abrogated.78

M.H. Rahman justice held that the doctrine of basic

structure is in a nascent stage and it may take some time

before it gets acceptance from the superior courts of the

countries where constitutionalism is prevailing. In other

words, time has no yet come to accord full recognition to

the doctrine. He, however, held that when Parliament by

itself cannot amend the preamble, it cannot indirectly

impair or destroy the fundamental aims of our society

mentioned in the preamble. He observed

78 A.K.M.Shamsul Huda, The Constitution of Bangladesh, First edition, 1997.volume-2.p.977.

62

The people of Bangladesh adopted, enacted and gave to

themselves the Constitution pledging in clear terms in

the Preamble 'that it shall be a fundamental aim of the

State to realise through the democratic process a

socialist society, free from exploitation - a society in

which the rule of law, fundamental human rights and

freedom, equality and justice, political, economic and

social, will be secured for all citizens' the

Proclamation Order No.IV of 1978 made the Preamble along

with Articles 8, 48, 56, 58, 80, 92A an entrenched

provision in the Constitution. The Preamble has become

the touchstone for assaying the worth or the validity of

an amendment that may be passed in accordance with clause

(1) of Art. 142. When the Parliament cannot by itself

amend the Preamble it cannot indirectly by amending a

provision of the constitution impair or destroy the

fundamental aim of our society.79

The celebrated doctrine of Basic Structure is the most

outstanding constitutional ‘invention’ of the Indian

Supreme Court in Kesavananda Bharati (His Holiness

Kesavananda Bharati v State of Kerala and another 1973

(4) SCC 225ff). The gist of the dictum is that parliament

could not use its amending powers to 'damage',

'emasculate', 'destroy', 'abrogate', 'change' or 'alter'

the 'basic structure' or framework of the Constitution.

Since then the premise of this proposition has become a

79 Anwar Hossain chowdhury v. Bangladesh,1989 BLD (Spl) 1, Para 391

63

cause celebrate (Hossain and Omar, Coup d' etat) in some

newer Commonwealth countries especially in South Asia. In

Bangladesh it was given a thriving trial by the Appellate

Division in Anwar Hossain Chowdhury v. Bangladesh 1989

BLD (Spl) 1. A majority of 3:1 of the Appellate Division

of the Supreme Court struck down the Constitution

(Eighth) Amendment Act, 1988 establishing six permanent

Benches of the High Court Division outside Dhaka on the

charge of being violative of the basic structure of the

Constitution. While scrutinizing the Anwar Hossain case

three most striking constitutional implications of it

become noticeable. First, the Judiciary has got a free

hand in defining basic structure making the concept a

fluctuating one and hence bad. Second, the judiciary has

got a final say over the power of the parliament to amend

the constitution. Third and the most sweeping one is that

judiciary will thereby not only trump over the ‘will of

the people’ expressed through an elected legislature, but

also the 'absolute will' of the people in case of

amendments effected through referendum. Against this

backdrop, even though feeling deeply associated with the

platitude that a democracy likes ours is vulnerable to

its own representatives due to ‘excessive adventures with

power’ coupled with uncertain political consciousness and

illiteracy of the people (Sethi 41), this paper argues:

First, that the plea of inherent limitation on the power

of amendment is not plausible as it makes certain

64

provisions of the Constitution (which again are to be

determined by the court on case to case basis) virtually

fixed for ever;

Second, that though mere parliamentary amendments

(effected through two thirds majority in the House) may

be subjected to judicial oversight, amendment effected

through referendum (Article 142 (1A)) must not be; and

Third, the judicial oversight on parliamentary amendment

again should be circumscribed by fixing or expanding, if

necessary, the list of basic structures in Article 142

(1A) of the Constitution so that the basic structure does

not become a matter of continuing uncertainty. Before the

assertions are presented with justifications and replies

to possible objections, we start with a brief account of

the constitutional provision regulating the amendment

procedure.80

6.2). Delimitation of Basic Structures:

Accepting the Judicial Review of parliamentary amendment

dos not relieve us of another important attack on Anwar

Hossain. It is the issue of there being innumerable and

controversial basic structures. In Anwar Hossain

80 Jashim Ali Chowdhury .Lecturer Department of Law Metropolitan University. published in Metropolitan university journal Vol-2 N-1.p(161-171)

65

Shahabuddin Ahmed J gave a list of eight basic features

of the Constitution Mohammad Habibur Rahman J added

another one to the list Badrul Haider Chowdhury J found

twenty one unique features out which some were basic

which he did not identify .In India more than half of the

provisions of the Indian Constitution are declared to be

basic and the list is still open .This never ending and

ever expanding list of basic structures is creating

nothing but confusion and inconsistent application. Two

instances below should suffice to establish the fact. In

the aftermath of the Babri Mosque incident the Indian

Supreme Court in S.R. Bommai v. Union of India (1994) 3

SCC 1 justified the dismissal of the BJP led governments

in Rajasthan, Madhya Pradesh and Himachal Pradesh on the

ground of failure to uphold the ‘secular’ character,

which was considered to be a basic feature, of the Indian

Constitution and President’s Rule was imposed there. Now,

strange result may follow if someone in India approaches

the Court for dismissal of a particular government on

account of its capitalist policy being opposed to

‘socialism’, another basic feature of the Indian

Constitution.

In the cases of Zafar Ali Shah v. General Parvez

Musharraf PLD 2000 SC 869 and Wasim Sajjad v. Pakistan

PLD 2001 SC 233 the Pakistan Supreme Court conceded the

Martial Law Administrator’s power to amend the

66

constitution as if democratic governance was not a basic

structure of the Pakistani Constitution. At the same time

it held that the Martial Law Administrator couldn’t

destroy the basic structures of the Constitution. How

curious an application of basic structure! Does there

remain anything basic while a usurper makes the

constitution subservient to his will?

So it is necessary to ensure certainty in list of basic

structure so that parliament will not be in a fix

regarding the scope of amending power Presently Article

142 (1A) provides a short list of issues amendment of

which requires referendum in addition to a two third

majority in the floor. To delimit the infinity of basic

structures, Article 142 (1A) of the Constitution may be

amended, if we think the present list to be too short, to

include some other features like constitutional supremacy

(art.7), elected local government (art.59), no taxation

without parliamentary approval (art.83), judicial review

(art.102), judicial independence (Article 22),

independence of the Election Commission (art.119) in

list. Doing this will require a referendum. This if done

in the form of renovation, will serve two purposes in the

same journey. It may solve the validity crisis of Article

142 (1A) as well as confirm that what is basic for a

political entity (i.e., the state) should be determined

by the political opinion of the people not by the judges.

The people will certify that these are the basic

structures of the constitution amendment of which would

67

require the Parliament to seek popular approval.

Importantly, this codification shall not foreclose the

list of basics for all the time to come. If any new

principle emerges in future which might then appear to be

‘basic’ the Legislature along with the Populace shall

have the option to add that in the Constitutional list

through referendum. This will mitigate the fear of

changes in the power equation between the parliament and

the judiciary in favour of the latter .In regular

Parliamentary amendments by two third majority in the

House, the Supreme Court shall, if challenged, see

whether the particular amendment conforms to the basics

enumerated in Article 142 (1A) or not.81

The power of amendment does not extend to alteration or

destruction of the basic structure or features of the

Constitution, the question arises whether the amendments

made in the Constitution are valid. The first three

amendments do not appear to have altered the basic

structure of the Constitution. But the Fourth Amendment

of the Constitution clearly altered the basic structure

of the Constitution and in one case the amendment was

found to have so altered the basic structure, but the

court did not declare the amendment invalid as, in the

opinion of the court, the constitutional process in the

country had followed a different course in view of the

change of the political system, the people have not

81 Jashim Ali Chowdhury .Lecturer Department of Law Metropolitan University. Published in Metropolitan university journal Vol-2 N-1.p(161-171)

68

resisted it and it has been recognized by the judicial

authorities.82

6.3) Independence of judiciary is a part of the

basic structure:

In the case of Secretary, Ministry of Finance Vs. Masdar

Hossain 52 DLR(AD)82,Mustafa Kamal,C'J 'while

interpreting Articles 94(4) and l16A clearly spelt out

that the independence of judiciary is one of the basic

pillars of our constitution and held in paragraph 59 as

follows:-

The independence of the judiciary, as affirmed and

declared by article 94(4) and 1l6A , is one of the basic

pillars of the Constitution and be demolished, whettled

down curtailed or diminished in any manner whatsoever'

except under the existing provisions of the Constitution

true that this independence' as emphasized by the learned

attorney General is subject to the provisions of the

Constitution' but we provision in the Constitution. which

curtails' diminishes or otherwise abridges this

independence.Articlell5' Article l33 or Article l36 not

give either the Parliament or the President the authority

to curtail diminish the independence of the subordinate

judiciary by recourse subordinate legislation or rules'

82 Mahmudul Islam, constitutional law of Bangladesh, second edition, 2002, p.406.

69

What cannot be done directly' can not be done

indirectly.83

Chapt

er: Seven

Problems of doctrine of

basic structure

7.1) Philosophy Underlying the Doctrine of Basic

Structure:

Someone might argue that this doctrine is vague and

should be rejected. But S. Ahmed. J. in 8th Amendment

case says that the doctrine of basic structure cannot be

83 Secretary, Ministry of Finance Vs. Masdar Hossain 52 DLR(AD)82

70

rejected if consequence of it, rejection is taken into

consideration.84 Seervai in his Constitutional Law of

India,85 rightly observed that the consequence of

rejecting the doctrine of basic structure would be so

grave and so opposed to the objectives of the

constitution that the consequence of uncertainty would be

insignificant by comparison. Actually, there are some

sound philosophical rationales, which work behind this

doctrine.

1. A constitution like a sacred document is made written

with a formal declaration by a democratic assembly

especially constituted on behalf of the people for this

purpose necessarily with a view to keeping its supremacy

as a lofty idealism for a nation. Every written

constitution, therefore, has certain fundamental

principles and objectives which are its structural

pillars and on which the whole edifice of the

constitution is erected and if these principles are taken

away or destroyed, the Constitution will lose its

original and inherent identity and character.

2. The parliament being a creature of the Constitution

must exercise its powers within the constitutional bounds

and limits. It, therefore, cannot enlarge its limited

power into an absolute power to destroy its basic

elements. If parliament had the power to destroy the

84 Anwar hossain Chowdhury v Bangladesh 1989 BLD (Spl)1 AD 19885Seervai Constitutional Law of India,? Vol.II, page 1568

71

basic feature of the Constitution, it would cease to be a

creature of the Constitution and become its master.

Moreover, a Constitution which is formally declared as a

sacred document and as the guide for the nation can, in

no way, be considered as an object of rapine and plunder

at the hand of the parliament. As S. Ahmed, J says in 8th

Amendment case, 'the doctrine of bar to change the basic

structure is an effective guarantee against frequent

amendments of the Constitution in secretarial or party

interest in countries where democracy is not given any

chance to develop.'

3. The declaration of constitutional supremacy as opposed

to the parliamentary supremacy in the Constitution

implicitly presupposes the existence of an independent

court or authority to examine the constitutionality of

actions done by the executive and legislative. Though the

judiciary like parliament is also the creature of. the

Constitution, it is the Constitution which at the same

time gives, somewhere directly and somewhere indirectly,

this judiciary the power to play the role of an umpire -

to see that the executive and legislative are not

transgressing. their constitutional limits. This is why

the judiciary under a written Constitution is called the

guardian of the Constitution.86

7.2) Types of Doctrine of Basic Structure:86 Md.Abdul Halim,Constitution,constitutional law and politics: Bangladesh perspective, second edition:September,2003.p.411,412

72

On the basis of treatment given by judges over 'basic

structure' principle in both Bangladesh and India, it

would, for the convenience of research and study, be

appropriate to use this doctrine in two senses:

1. Basic structure principle in general sense or

numerable sense;

And

2. Basic structure principle in real or substantive

sense.

Most of the judges so far have treated this doctrine from

numerative point of view. Someone says that there are 21

basic structures, someone says for 6, someone 3 and so

on. This is why no unanimity can be found among the

judges as to the substance of this doctrine. If this

doctrine is meant from this general or numerable sense

then there are some dangers, which are as follows:

Firstly, any provision of the Constitution may come, if

judges so interprets, under the umbrella of this doctrine

giving rise to vagaries of clashing principles.

Secondly, this will give rise to differences of opinion

among the judges which has been seen in every cases

upholding’ basic structure' doctrine.

73

Thirdly, the judiciary may, by applying any provision

under the umbrella of 'basic feature' principle, 'reduce

or narrow down the justifiable scope of amending power of

the parliament. And the absolute judicial dictation, in

other words, the whim of judiciary may take the place of

constitutional limit in respect of amending power of the

Constitution.

Fourthly, in some cases, the judgment of the court will

be reduced into nullity reducing ultimately the dignity

and institutional value of the Judiciary as has been the

case of the judgment of Badrul Haider Chowdhury in 8th

Amendment case. In his judgment he Mentioned the then

Articles 48 and 58 of the constitution to be the basic

features of the constitution. These articles then

provided for direct election of the President in

presidential form of government and the selection by the

President of a member of parliament as Prime Minister who

commands the support of the majority. These Articles, he

said, are protected. But within two years from this

judgment ,after the general election in February,1991 the

then Articles 48 and 58 amplified as a 'basic feature' by

B.H. Chowdhury J. were substituted by the constitution

(Twelfth Amendment) Act, 1991 replacing the presidential

system of government with parliamentary one. Had he,

therefore, mentioned 'democracy' instead of these two

'specific articles as 'basic feature', his judgment would

have been more authentic, logical and meaningful. Because

74

democracy is a philosophy as well as a goal of out nation

as embodied in the preamble of the constitution. so

'democracy' should be a basic feature which has, in

reality, no contradiction with the presidential or

parliamentary form of government.

So with a view to avoiding the above mentioned dangers

and also allowing it to grow as a sound principle of

Constitutional law both the judges and researchers should

take the 'basic structure' principle in a special sense

rather than in general or numerable sense. In special

sense or in real or substantive sense the doctrine of

basic structure' means those fundamental principles and

objectives of the Constitution which are its structural

pillars and on which the whole edifice of the

Constitution is erected and if these principles are taken

away or destroyed, the Constitution will lose its

original and inherent identity and character. So if it is

found that a Constitutional amendment made by parliament

has affected or is likely to destroy any of the basic

features of the Constitution, then the amendment should

be declared unconstitutional and void. And this

substantive sense the doctrine necessarily indicates and

means the 'preamble' of the Constitution. Because it is

the preamble which, in the way of embodying philosophy of

the Constitution, contains the fundamental principles and

6bjectives as fundamental aims or goal of the notion.

Taking the preamble as a guiding star, or touchstone or

75

centre point judges should explain and nourish the

doctrine. It is pertinent to mention here that Justice

Muhammad Habibur Rahman in 8th Amendment case

specifically and with emphasis meant 'preamble' of the

Constitution as the pole star in relation to the doctrine

of 'basic structure'.87

7.3) Problems of the Doctrine of Basic Structure:

As has been mentioned just now that there still remains a

considerable controversy and differences of opinion as to

the substance of the doctrine of 'basic structure'.

Because what actually is meant by the doctrine?, What

subject-matters will come under the category of 'basic

feature'?, Which particular features of a Constitution

are basic and which are not ? These are the questions

which are still haunting both the judges and researchers.

ln Kesavanannda'.s case Sikri C.J. says that the basic

structure of the Constitution consists of the following

features-

i)Supremacy of the Constitution.

ii) Republican and democratic form of government'

iii) Secular characteristic of the Constitution'

87 Md.Abdul Halim,Constitution,constitutional law and politics: Bangladesh perspective, second edition:September,2003.p.413,414

76

iv) Separation of power between the executive,

legislative and Judiciary.

V)'federal Character of the Constitution'

According to Shelat and Grover J.J.' the following are

the example of the basic structure of the Constitution:

i) Supremacy of the Constitution.

ii) Republican and democratic form of government and

Sovereignty of the country'

iii) Secular and federal character of the Constitution

iv) Demarcation of power between the legislative,

executive and Judiciary.

v).Dignity of individual security by various freedoms and

basic rights 'in part lll and the mandate to build a

welfare state contained in Part V.

vi) Unity and integrity of the nation.

Unegde, J. and Mukherjea, J. identified a separate and shorter

list of basic features:

i) Sovereignty of India

ii) Democratic character of the polity

iii) Unity of the country

iv) Essential features of the individual freedoms secured

to the citizens

v) Mandate to build a welfare state

77

Jaganmohan Reddy, J. stated that elements of the basic

features were to be found in the Preamble Of the

Constitution and the provisions into which they

translated such as:

i) Sovereign democratic republic

ii)  Justice - social, economic and political

iii)  Liberty of thought, expression, belief, faith and

worship

iv) Equality of status and the opportunity.88

ln Indira Gandhi,s case the following features were

termed as basic :

i) Rule of law.

ii) Judicial review.

iii) The principle of free and fair election as, a

principle of democracy.

iv) Jurisdiction of the Supreme Court under Article 32.89

In Minerva Mills case the Supreme Court held that the

following are the basic features of the Constitution:

i) Limited power of parliament to amend the constitution.

88 Keshavananda Bharati v. Kerala, AIR 1873 SC 146189 Indira Gandhi v. Raj Narayan AIR 1975 Sc 2299.

78

ii) Harmony and balance between fundamental rights and

directive Principles.

iii) Fundamental rights in certain cases'

.iv) Power of judicial review in certain cases.90

Likewise in 8th Amendment case of Bangladesh the judges

could not come into a unanimity as to what constitute’

basic feature' of the constitution. According to B' H.

chowdhury. J', 21, features are basic feature of our

constitution. justice Sahabuddin Ahmed has mentioned six

features as basic which have been mentioned earlier.

Now we can say, there is no hard and fast rule for basic

feature of the Constitution. Different judge keep

different views regarding to theory of basis structure.

But at one point they have similar view that parliament

has no power to destroy, alter, or emasculate the

'basic structure’ or framework of the constitution. ? If

the historical background, the preamble, the entire

scheme of the constitution and the relevant provisions

thereof including article 142 are kept in mind then there

can be no difficulty, in determining what are the basic

elements of the basic structure of the constitution.

These words apply with greater force to doctrine of the

90 Menerva Mills Ltd v. India AIR 1980 SC 1779.

79

basic structure, because, the federal and democratic

structure of the constitution, the separation of powers,

the secular character of our state are very much more

definite than either negligence or natural justice. So

for the protection of welfare state, fundamental rights,

Unity and integrity of the nation, Sovereign democratic

republic and for Liberty of thought, expression, belief,

faith and worship, interpretation of judiciary is

mandatory. We can say none is above constitution even

parliament and judiciary.91

91 visit on http://www.legalserviceindia.com/articles/thyg.htm

80

Cha

pter: Eight

C

onclusion

8.1) Recommendation:Above mention discussion are the amendment of

constitution and basic structure doctrine of the

constitution. In my view that above discussion the

amendment procedure of the constitution is not easy.

However, amendment of constitution is very much necessary

because the society change day by day. The Constitution

is not set in stone. It is a living document. It must

serve its purpose. It has to march with the needs of the

time. There are times when it is necessary to amend the

Constitution. I give some recommendation such as follows:

81

i) If the amendment of the constitution is necessary must

be reflect the will of the people of the Bangladesh.

Because amendments to Constitutions sometimes have taken

place to suit the interests of a particular person or to

meet the interests of the party in power.

ii) The referendum is essential in the case of amendment

of the important article of the Bangladesh constitution.

But basic feature of the constitution can not be amended

or destroyed.

iii) The amendment of the constitution cannot have the

effect of destroying abrogating of the basic structure

framework of the constitution. That means the basic

structure or the essential feature of the constitution

cannot destroyed.

iv) Every provision of the constitution can be amended

provided in the result the foundation and the structure

of the constitution remains the same. In the other words

the basic structure of the constitution can not be

amended.

v) Expressly mention which is the basic feature of the

constitution .and which provision can not amended.

Because sometimes its creates some problems different

judges gives different opinion, Likewise in 8th Amendment

82

case of Bangladesh the judges could not come into a

unanimity as to what constitute’ basic feature' of the

constitution. According to B' H. chowdhury. J', 21,

features are basic feature of our constitution. Justice

Sahabuddin Ahmed has mentioned six features as basic.92 In

India more than half of the provisions of the Indian

Constitution are declared to be basic and the list is

still open. This never ending and ever expanding list of

basic structures is creating nothing but confusion and

inconsistent application.

vi) If the amendment of the constitution is necessary

must be maintain all the procedure which is mention in

article 142 of the People’s Republic of the Bangladesh

constitution.

vii) If the constitution is amended to be followed such

other procedure as the constitution prescribes.

viii) Provision of amendment of constitution must be

needed in any country because the society changes day by

day.

8.2) conclusion:

A constitution is meant to be permanent, but as all

changing situations cannot be envisaged and amendment of

the constitution may be necessary to adapt to the future

developments, provision is made in the constitution

92 Anwar hossain Chowdhury v Bangladesh, 1989 BLD (AD) p.198.

83

itself to effect changes required by the changing

situations. When a legislature, which is a creature of

the constitution, is given the power of amendment, it is

a power given not to subvert the constitution, but to

make it suitable to the changing situations.

The legislature is the fundamental organ of the state and

"the repository of the Supreme will of society.

Therefore, it alone represents the will of the people. To

honour the legislature is to honour the people and

consequently, to honour democracy. For this reason the

legislature, though it is under the constitution and

functions within the limits prescribed by it, is vested

with the power to bring about changes in the

constitution.

The rational of the amending power of the legislature is

that, notwithstanding the supremacy of the constitution,

the constitution must develop out of life and aspiration

of the people; its fundamental concepts, if they have to

be useful and lasting, should be in tune with the culture

and the times. This requires a continuous adaptation of

the constitution. The purpose for providing for the

amendment of the constitution is to make it possible

gradually to change the constitution in an orderly

fashion as the changes in social conditions make it

necessary to change the fundamental law to correspond

with such social change.

84

Amending the Constitution is an on-going process in any

democratic country to meet the demands of changed

circumstances. Countries having a long tradition of

democracy have gone for amendment of their Constitutions

in greater national interests. But in countries like

Bangladesh, where democracy is yet to take root,

amendments to Constitutions sometimes have taken place to

suit the interests of a particular person or to meet the

interests of the party in power.

"Basic structure of the Constitution" cannot be altered

or amended. The Constitution is not an ordinary

legislation. It is a basic structure how a country is

governed. It reflects history, ethos, and aspirations of

people of a country. There are certain basic principles

on which a constitution is founded and these principles

must be preserved.

85