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Revisiting Judicial Review of Constitutional Amendments in Bangladesh: Article 7B, the Asaduzzaman Case, and the Fall of the Basic Structure Doctrine
Published online by Cambridge University Press: 16 January 2023
Abstract
In 1989, the Supreme Court of Bangladesh, in the Anwar Hossain Chowdhury case, first embraced implicit unamendability or interpretative unamendability of the Constitution – that is, the basic structure doctrine. Since then, the basic structure or the basic feature doctrine has been recognised as the theoretical premise underpinning judicial review of constitutional amendments in Bangladesh. In 2011, the Parliament adopted Article 7B of the Constitution, which introduced explicit or codified unamendability of a substantial number of provisions of the Constitution. This article argues that with the adoption of Article 7B, the basic structure doctrine has lost its relevance as the most important normative tool for determining the validity of future constitutional amendments, and this was confirmed in the Asaduzzaman case, in which the parliamentary mechanism for the removal of Supreme Court judges was held unconstitutional on the basis of Article 7B of the Constitution. It is also argued that the reasoning provided in the majority opinion of the Asaduzzaman case is not entirely flawless.
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- Copyright © The Author(s), 2023. Published by Cambridge University Press in association with the Faculty of Law, the Hebrew University of Jerusalem
References
1 Civil Appeal No 06 of 2017, [2019] 71 DLR (AD) 52 (Asaduzzaman case).
2 The Supreme Court of Bangladesh is made up of two Divisions: the High Court Division and the Appellate Division.
3 The original Article 96(2) of the Bangladesh Constitution provided for the assent of a minimum of two-thirds of the total members of Parliament for removing any Supreme Court judge on the grounds of proved misbehaviour or incapacity.
4 Anwar Hossain Chowdhury and Others v Bangladesh [1989] BLD (SPL) 1 (Anwar Hossain Chowdhury case).
5 Bangladesh Italian Marble Works Ltd v Bangladesh [2010] 62 DLR (HCD) 70.
6 Bangladesh v Bangladesh Italian Marble Works Ltd and Others, Civil Review Petition Nos. 17–18 of 2011, Judgment delivered on 29 March 2011.
7 The Constitution (Fifteenth Amendment) Act 2011, s 31.
8 ibid s 7.
9 The Constitution (Sixteenth Amendment) Act 2014, s 2.
10 [2016] 8 ALR (HCD) 161, Writ Petition No. 9989 of 2014, Judgment delivered on 5 May 2016.
11 Civil Review Petition No. 751 of 2017.
12 On implicit unamendability and the basic structure doctrine, see Yaniv Roznai, Unconstitutional Constitutional Amendments: The Limits of Amendment Powers (Oxford University Press 2017) 39–49. On interpretative unamendability and the basic structure doctrine, see Richard Albert, Constitutional Amendments: Making, Breaking and Changing Constitutions (Oxford University Press 2019) 149–53.
13 According to Albert, codified unamendability refers to a rule that is formally entrenched in the text of a Constitution: Albert (n 12) 139–41. Roznai referred to codified unamendability as explicit unamendability: Roznai (n 12) 15–18.
14 There is a vast amount of legal literature critical of judicial enforcement of constitutional unamendability on grounds such as separation of powers, counter-majoritarian effect, democratic legitimacy, constituent/derivative power, political question, supremacy of the judiciary. To obtain an overview of the criticism and responses thereto, see Roznai (n 12) 186–96; see further, Albert, Richard, ‘Counterconstitutionalism’ (2008) 31(1) Dalhousie Law Journal 1Google Scholar; RAlbert, ichard, ‘Constitutional Handcuffs’ (2010) 42 Arizona State Law Review 663Google Scholar; Yaniv Roznai, ‘Necrocracy or Democracy? Assessing Objections to Constitutional Unamendability’ in Richard Albert and Bertil Emrah Oder (eds), An Unconstitutional Constitution? Unamendability in Constitutional Democracies (Springer 2018) 29; Landau, David, ‘Abusive Constitutionalism’ (2013) 47 UC Davis Law Review 189Google Scholar; Dixon, Rosalind and Landau, David, ‘Transnational Constitutionalism and a Limited Doctrine of Unconstitutional Constitutional Amendment’ (2015) 13 International Journal of Constitutional Law 606CrossRefGoogle Scholar.
15 Uddin and Nabi made a comparative analysis of jurisdiction-specific factors contributing to recognition or non-recognition of judicial review of constitutional amendments in the United States, India and Bangladesh: Uddin, Mohammad Moin and Nabi, Rakiba, ‘Judicial Review of Constitutional Amendments in Light of the “Political Question” Doctrine: A Comparative Study of the Jurisprudence of Supreme Courts of Bangladesh, India and the United States’ (2016) 58 Journal of the Indian Law Institute 313, 328–34Google Scholar.
16 Kawser Ahmed, ‘The Supreme Court's Power of Judicial Review in Bangladesh: A Critical Evaluation’, 1 April 2015, http://dx.doi.org/10.2139/ssrn.2595364.
17 Kawser Ahmed, ‘Review of a Constitutional Amendment: What Does Legally Matter?’, The Daily Star (Dhaka), 29 May 2018, 14.
18 ibid.
19 ibid.
20 Bangladesh Italian Marble Works Ltd (n 5).
21 Siddique Ahmed v Bangladesh [2011] 63 DLR (HCD) 565.
22 Anwar Hossain Chowdhury case (n 4).
23 Abdul Mannan Khan v Bangladesh [2012] 64 DLR (AD) 169 (Abdul Mannan case).
24 Anwar Hossain Chowdhury case (n 4).
25 Ridwanul Hoque, ‘The Judicialization of Politics in Bangladesh: Pragmatism, Legitimacy, and Consequences’ in Mark Tushnet and Madhav Khosla (eds), Unstable Constitutionalism: Law and Politics in South Asia (Cambridge University Press 2015) 261, 278–79.
26 Kawser Ahmed, ‘Misreading or Leapfrogging? SC's Power to Review Constitutional Amendment’, The Daily Star (Dhaka), 22 August 2017, 12.
27 Anwar Hossain Chowdhury case (n 4) 85 para 150.
28 Bangladesh Italian Marble Works (n 5) 113–14 para 135; Siddique Ahmed (n 21) 612 paras 242–43; Abdul Mannan case (n 23) 257 paras 614–15; Asaduzzaman case (n 1) 86–87 para 77.
29 IC Golaknath and Others v State of Punjab and Another [1967] AIR 1643, [1967] SCR (2) 762; Kesavananda Bharati Sripadagalvaru and Others v State of Kerala and Another [1973] 4 SCC 225, [1973] AIR SC 1461. See further Ahmed, Nafiz, ‘The Intrinsically Uncertain Doctrine of Basic Structure’ (2022) 14 Washington University Jurisprudence Review 307, 318–25Google Scholar; Haque, Muhammad Ekramul, ‘The Concept of “Basic Structure”: A Constitutional Perspective from Bangladesh’ (2005) 16(2) The Dhaka University Studies – Part F 123, 125–33Google Scholar. Some scholars, notably from India, have recently studied the influence, if any, of Dworkin's scholarship on the basic structure doctrine; see, eg, Sudhir, Abhishek, ‘Discovering Dworkin in the Supreme Court of India: A Comparative Excursus’ (2014) 7 NUJS Law Review 1Google Scholar; Baxi, Upendra, ‘“A Known but an Indifferent Judge”: Situating Ronald Dworkin in Contemporary Indian Jurisprudence’ (2003) 1 International Journal of Constitutional Law 557CrossRefGoogle Scholar.
30 Roznai (n 12) 47.
31 [1963] 15 DLR (Dacca) 355. Dr Kamal Hossain was the lead counsel for the appellant in the Anwar Hossain Chowdhury case; see Ridwanul Hoque, ‘The Evolution of the Basic Structure Doctrine in Bangladesh: Reflections on Dr. Kamal Hossain's Unique Contribution’ (2021) 10 The Indian Journal of Constitutional Law 1, 5–9, https://ijcl.nalsar.ac.in/wp-content/uploads/2021/11/Hoque_IJCL_volume10_2021.pdf.
32 [1963] PLD (SC) 486.
33 Ridwanul Hoque, ‘Implicit Unamendability in South-Asia: The Core of the Case for the Basic Structure Doctrine’ (2018) 3 Indian Journal of Constitutional & Administrative Law 23, 25–26. Haque (n 29) 123–25.
34 Ahmed (n 17).
35 Article 26 of the Bangladesh Constitution provides: ‘(1) All existing law inconsistent with the provisions of this Part shall, to the extent of such inconsistency, become void on the commencement of this Constitution. (2) The State shall not make any law inconsistent with any provisions of this Part, and any law so made shall, to the extent of such inconsistency, be void. (3) Nothing in this article shall apply to any amendment of this Constitution made under article 142’ (emphasis added).
36 Ahmed (n 17). See Rokeya Chowdhury, ‘The Doctrine of Basic Structure in Bangladesh: From “Calfpath” to Matryoshka Dolls’ (2014) 14 (1&2) Bangladesh Journal of Law 43, 64–65.
37 Anwar Hossain Chowdhury case (n 4) 88–89 para 166. Contrariwise, Justice Ahmed and Justice Rahman argued that a constitutional amendment could not be labelled as ‘law’ after incorporation of Article 26(3) in the Constitution: Anwar Hossain Chowdhury case (n 4) 142, 167, paras 339, 421–23. We will discuss this point in Section 3.
38 Mustafa Kamal, Bangladesh Constitutions: Trends and Issues (University of Dhaka 1994, reprint 2001) 92–94.
39 Hoque (n 31) 10.
40 Anwar Hossain Chowdhury case (n 4) 46 para 2.
41 Writ Petition Nos 1252 and 1176 of 1988, Judgment delivered on 15 August 1988: ibid para 1.
42 Kamal (n 38) 95.
43 Anwar Hossain Chowdhury case (n 4) 46 para 5.
44 ibid 111 paras 255–57 (Justice Chowdhury); ibid 151, 156–57 paras 361, 378 (Justice Ahmed); ibid 171, 179 paras 443, 483 (Justice Rahman). The Appellate Division allowed the appeal by a 3:1 decision.
45 Kawser Ahmed, ‘What is Actually the Basic Feature Doctrine?’, The Daily Star (Dhaka), 5 June 2018, 15.
46 ‘[S]ome of the aforesaid features are the basic features of the Constitution and they are not amenable by the amending power of the Parliament’: Anwar Hossain Chowdhury case (n 4) 111 para 255 (Justice Chowdhury); ‘These are structural pillars [basic structures] of the Constitution and they stand beyond any change by amendatory process’: ibid 156 para 377 (Justice Ahmed).
47 ibid 157 para 378.
48 ‘An amending law becomes part of the Constitution, but an amending law cannot be valid if it is inconsistent with the Constitution’: ibid 88 para 166 (Justice Chowdhury); ‘There is however a substantial difference between Constitution and its amendment. Before the amendment becomes a part of the Constitution it shall have to pass through some test, because it is not enacted by the people through a Constituent Assembly’: ibid 143 para 341 (Justice Ahmed).
49 Roznai (n 12) 49. In the opinion of Aharon Barak, the basic structure doctrine signifies an implied eternity clause that protects the basic structure of the Constitution: Aharon Barak, ‘Unconstitutional Constitutional Amendments’ (2011) 44 Israel Law Review 321, 336–38. On a related note, Wright thinks that the idea of implied substantive limitations on constitutional amendments can be found in natural law thinking: R George Wright, ‘Could a Constitutional Amendment Be Unconstitutional?’ (1991) 22 Loyola University Chicago Law Journal 741, 756.
50 Kamal Hossain, Chairman of the Constitution Drafting Committee, categorically stated before the Constituent Assembly that any provisions of the Constitution, from Articles 1 to 153, as well as those of the schedules, are amendable: Kawser Ahmed (ed), Proceedings of the Constituent Assembly of Bangladesh: Debates on the Making of the Constitution, vol 2 (Pencil Publications 2022) 243.
51 Anwar Hossain Chowdhury case (n 4) 155–56 para 376.
52 ibid paras 152, 166, 195.
53 Ahmed (n 45). Ridwanul Hoque termed the basic structures as the fundamental cores of the Constitution and/or the fundamental constitutional cores: Ridwanul Hoque, ‘Eternal Provisions in the Constitution of Bangladesh: A Constitution Once and for All’ in Albert and Oder (n 14) 195, 197–200.
54 Anwar Hossain Chowdhury case (n 4) 156 para 377.
55 ibid paras 192, 334–36, 378.
56 Ahmed (n 45).
57 Anwar Hossain Chowdhury case (n 4) 109–11, 155–56 paras 254, 376.
58 Ahmed (n 45).
59 ibid.
60 Anwar Hossain Chowdhury case (n 4) 59–60 para 51.
61 Ahmed (n 45).
62 In this respect I agree with Roznai's view that the supra-constitutional limitations are better described by explicit or implicit limitations within the Constitution itself: Yaniv Roznai, ‘The Theory and Practice of “Supra-Constitutional” Limits on Constitutional Amendments’ (2013) 62 International and Comparative Law Quarterly 557.
63 Anwar Hossain Chowdhury case (n 4) 155–56 para 376.
64 Article 1 of the Bangladesh Constitution provides: ‘Bangladesh is a unitary, independent, sovereign Republic to be known as the People's Republic of Bangladesh’.
65 Barak (n 49) 337.
66 Ahmed (n 45).
67 ibid.
68 ibid.
69 Anwar Hossain Chowdhury case (n 4) 156 para 377.
70 ibid 111 para 255.
71 Ahmed (n 45).
72 ibid. Jacobsohn sees a constitutional amendment as a new chapter in an ongoing constitutional story and proposes that how well it fits the existing narrative should be a factor in assessing its quality: Gary Jeffrey Jacobsohn, ‘An Unconstitutional Constitution? A Comparative Perspective’ (2006) 4 International Journal of Constitutional Law 460, 485.
73 Anwar Hossain Chowdhury case (n 4) 155 para 375.
74 ibid 85, 111–12, paras 151, 258.
75 Article 152(1) of the Bangladesh Constitution defines the term, ‘law’ as any Act, ordinance, order, rule, regulation, by-law, notification, or other legal instruments, and any custom or usage, having the force of law in Bangladesh.
76 Article 7(2) provides that any law inconsistent with the Constitution shall be void to the extent of its inconsistency.
77 Anwar Hossain Chowdhury case (n 4) 85 para 150.
78 ibid 142–43 paras 340–42 (Justice Ahmed); 166–67 paras 416–23 (Justice Rahman).
79 By way of example, Justice Ahmed mentioned that the Indian Supreme Court declared the supremacy of the Indian Constitution even if there was no provision therein like Article 7 of the Bangladesh Constitution: ibid para 340. Justice Rahman stated that the Court's power to decide the validity of constitutional amendments was a settled issue: ibid 165 para 409. Rostow expressed a similar view that the power of constitutional review is implicit in the conception of a written constitution: Eugene V Rostow, ‘The Democratic Character of Judicial Review’ (1952) 66 Harvard Law Review 193, 195.
80 See sources at n 28.
81 Constitution of the People's Republic of Bangladesh 1972, arts 101, 103.
82 Article 152(2) of the Constitution provides that the General Clauses Act 1897 shall apply in relation to the Constitution as it applies in relation to an Act of Parliament. s 3(1A) of the General Clauses Act 1897 provides that an Act of Parliament shall mean an Act passed by Parliament and shall include any Act passed or made by any legislature or any person having authority to legislate under any Constitutional instrument in force in Bangladesh or any portion thereof.
83 ‘The constituent power is here with the people of Bangladesh and Article 142(1A) expressly recognises this fact’: Anwar Hossain Chowdhury case (n 4) 88 para 166 (Justice Chowdhury); ‘As to the “constituent power”, that is [the] power to make a Constitution, it belongs to [the] people alone. It is the original power’: ibid 143 para 342 (Justice Ahmed).
84 ‘The laws amending the Constitution are lower than the Constitution and higher than the ordinary laws’: ibid 96 para 195 (Justice Chowdhury); ‘There is, however, a substantial difference between the Constitution and its amendment. Before the amendment becomes a part of the Constitution it shall have to pass through some test, because it is not enacted by the people through a Constituent Assembly’: ibid 143 para 341 (Justice Ahmed).
85 Abdul Mannan case (n 23)
86 ibid paras 1223–31.
87 See n 13 and texts related thereto.
88 It should be noted that the English translation of Article 7B appears to be somewhat different from the Bengali text. The Bengali text of Article 7B suggests that Parts I, II and III and Article 150 of the Constitution are unamendable because they constitute basic structures. Article 153(3) of the Constitution provides that the Bengali text shall prevail over the English text in the event of any conflict between them.
89 Hoque (n 53) 215–16.
90 Anwar Hossain Chowdhury case (n 4) 155–56 para 376.
91 Kawser Ahmed, ‘Article 7B, Or the Death of the Basic Feature Doctrine?’, The Daily Star (Dhaka), 12 June 2018, 12.
92 ibid. For the opposite view see Roznai (n 12) 49.
93 Article 142 of the Bangladesh Constitution provides: ‘Notwithstanding anything contained in this Constitution – (a) any provision thereof may be amended by way of addition, alteration, substitution or repeal by Act of Parliament: Provided that – (i) no Bill for such amendment shall be allowed to proceed unless the long title thereof expressly states that it will amend a provision of the Constitution; (ii) no such Bill shall be presented to the President for assent unless it is passed by the votes of not less than two thirds of the total number of members of Parliament; (b) when a Bill passed as aforesaid is presented to the President for his assent he shall, within the period of seven days after the Bill is presented to him assent to the Bill, and if he fails so to do he shall be deemed to have assented to it on the expiration of that period’.
94 Article 7(2) of the Bangladesh Constitution provides: ‘This Constitution is, as the solemn expression of the will of the people, the supreme law of the Republic, and if any other law is inconsistent with this Constitution that other law shall, to the extent of the inconsistency, be void’.
95 Kawser Ahmed, ‘Revisiting the Majority Opinion in the 16th Amendment Case’, The Daily Star (Dhaka), 25 September 2018, 12.
96 The term ‘any law’ in Article 7 includes a constitutional amendment: Anwar Hossain Chowdhury case (n 4) 85, 87 paras 150, 166.
97 Ahmed (n 95).
98 Hoque (n 53) 215–16.
99 Ahmed (n 95).
100 Roznai is of the view that unamendability should permit a certain level of flexibility by allowing constitutional amendments to enable constitutional progress on the one hand, and shield the core features of the constitution from amendment on the other: Roznai (n 12) 218. See also Hoque (n 53) 219.
101 Ahmed (n 91).
102 ibid.
103 ibid.
104 Ahmed (n 17).
105 Ahmed (n 91).
106 ibid.
107 ibid.
108 The Constituent Assembly was established under the Constituent Assembly of Bangladesh Order, 1972, for the purposes of adopting a Constitution for Bangladesh.
109 Anwar Hossain Chowdhury case (n 4) 111 para 255.
110 Civil Petition for Leave to Appeal Nos 1044 & 1045 of 2009, reported as Khondker Delwar Hossain and Another v Bangladesh Italian Marble Works Ltd and Others [2010] 62 DLR (AD) 298.
111 Bangladesh v Bangladesh Italian Marble Works Ltd and Others (n 6).
112 ibid.
113 See Legislative and Parliamentary Affairs Division, The Constitution of the People's Republic of Bangladesh (2011) i–ii.
114 ibid para 121.
115 ibid.
116 Asaduzzaman case (n 1) 129–30 paras 122–23.
117 Gazette notification published on 22 September 2014: ibid 194 para 376.
118 Chowdhury, M Jashim Ali and Saha, Nirmal Kumar, ‘Advocate Asaduzzaman Siddiqui v. Bangladesh: Bangladesh's Dilemma with Judges’ Impeachment’ (2017) 3(3) Comparative Constitutional Law and Administrative Law Quarterly 7, 11Google Scholar.
119 Writ Petition No 9989 of 2014 (n 10).
120 Civil Appeal No 06 of 2017.
121 Asaduzzaman case (n 1) 93 para 101.
122 ibid para 7.
123 ibid 189 para 356 (emphasis added).
124 ibid 189–90 para 358.
125 Ahmed (n 95).
126 See Hoque (n 53) 215–16.
127 See the Constituent Assembly's debate on Article 96 held on 3 November 1972: Government of Bangladesh, The Proceedings of the Constituent Assembly, vol 2 (1972) 431–32.
128 The parliamentary system of government was reinstated by the Constitution (Twelfth Amendment) Act 1991.
129 Article 48(3) of the Constitution unequivocally provides that the President shall act under the advice of the Prime Minister in the exercise of all his functions save only that of appointing the Prime Minister and the Chief Justice.
130 Article 96(5) of the Constitution was inserted by s 31 of the Constitution (Fifteenth Amendment) Act 2011.
131 Article 96(6) of the Constitution was inserted by s 31 of the Constitution (Fifteenth Amendment) Act 2011.
132 Asaduzzaman case (n 1) 128–29 para 118.
133 Anwar Hossain Chowdhury case (n 4) 109–11 paras 254–55 (Justice Chowdhury); 151, 156 paras 365, 377 (Justice Ahmed).
134 Ahmed (n 95).
135 ibid.
136 Constitution of the People's Republic of Bangladesh 1972, arts 118(5), 129(2) and 139(2).
137 National Human Rights Commission Act 2009, s 8(1); Anti-Corruption Commission Act 2004, s 10(3).
138 Ridwanul Hoque, ‘Can the Court Invalidate an Original Provision of the Constitution?’ (2016) 2 The University of Asia Pacific Journal of Law and Policy 13, 20. To get a glimpse of the arguments of all sides before the High Court Division (the petitioner, the respondents, and the amici curiae) see Chowdhury and Saha (n 118).
139 Asaduzzaman case (n 1) 128–29 para 118.
140 ibid 183 para 333.
141 Notably, Article 7B does not make an exception for any amendment reinstating an original provision of the Constitution.
142 Asaduzzaman case (n 1) 130–31 para 126.
143 Hoque vehemently criticised the High Court Division's judgment on this point and those criticisms also apply mutatis mutandis to the majority opinion in the Asaduzzaman case: Hoque (n 138) 20–27.
144 On the unconstitutionality of the original constitutional provisions see generally Landau, David, Dixon, Rosalind and Roznai, Yaniv, ‘From an Unconstitutional Constitutional Amendment to an Unconstitutional Constitution? Lessons from Honduras’ (2019) 8 Global Constitutionalism 40CrossRefGoogle Scholar.
145 Ahmed (n 95).
146 ibid.
147 cf Nafiz Ahmed (n 29) 329.
148 Ahmed (n 95).
149 For example, in Marbury v Madison, the then US Chief Justice John Marshall scrutinised the Judiciary Act of 1789, although the Act was not called into question by the parties to the case: Marbury v Madison 5 US (1 Cranch) 137 (1803).
150 Civil Review Petition No 751 of 2017. See Constitution of the People's Republic of Bangladesh 1972, art 105.
151 Halima Jaman v Bangladesh (1998) 50 DLR (HCD) 352.
152 The Supreme Court of Bangladesh (Appellate Division) Rules 1988, Order XXVI, Rule 1.
153 Mahmudul Islam and Probir Neogi, The Law of Civil Procedure, vol 2 (Mullick Brothers 2006) 1779. See also Dewan v Gulab [1973] 77 CWN 566.
154 Secretary, Ministry of Finance v Md Masdar Hossain (2001) 21 BLD (AD) 126, para 12. Similar decisions have been made by the Appellate Division in Ekushey Television Ltd v Dr Chowdhury Mahmood Hasan (2003) 55 DLR (AD) 26, 31 para 24; Girilal Garwala v Collector of Customs, Chittagong (2006) 58 DLR (AD) 45, 46 para 4.
155 Bangladesh v Bangladesh Italian Marble Works Ltd and Others, Civil Review Petition Nos 17–18 of 2011, Judgment delivered on 29 March 2011.
156 Criminal Appeal Nos 15–16 of 2010, Judgment delivered on 14 February 2017.
157 Ataur Mridha alias Ataur v Bangladesh, Criminal Review Petition No 82 of 2017, Judgment delivered on 1 December 2020.
158 Bangladesh v Bangladesh Italian Marble Works Ltd and Others (n 155).
159 ibid.