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

1.2: 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

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

1
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 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 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-

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

2
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 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.

3
 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 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).

3
A.K.M.Shamsul Huda.the constitution of Bangladesh, volume-1 ,first edition 1997.p1.

4
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 and 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 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 Chowdhury 5 Murshed, J. (as he

then was) observed," A Constitution is a Solemn and sacred document of seminal and

4
Constitutional Law-E.C.S. wade &A.G. Phillips.
5
PLD 1963 Dacca 664

5
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 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 manage their State as per rules, regulations set out by the

6
Felix Frankfurters Mr. Justice Holmes and the Supreme Court.
7
Ramhari Mandal v. Nilmoni Das. A.I.R 1952 Cal.184.

6
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.

7
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.

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

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

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

9
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 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

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

10
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 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

11
N. Arunchalam Classification of Constitution on Constitutional Law.
12
A.K.M.Shamsul Huda.the constitution of Bangladesh, volume-1 ,first edition 1997.p 7

11
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. WHEARE 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 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

13
The Law Lexicon (Reprint Edition.1987) p.62.
14
Websters Ninth New Collegiate Dictionary.
15
Seorajin Debi v. Satyadhan Ghosal AIR 1954 Cal 119.58 C W N 64.

12
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

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

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
19
Anwar hossain Chowdhury v. Bangladesh 1989 BLd (spl) 1,para 192
20
Mahmudul Islam-Constitutional Law of Bangladesh(second edition)p.392.

13
structure. The Court therefore has power to undo an amendment if it transgresses its
limit and alters a basic structure of the Constitution.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.

Chapter: Three
Provision of the Amendment of Constitution

21
Anwar hossain Chowdhury v. Bangladesh 1989 BLD (spl)1 para 378
22
Sheridan v. Salem, 14 Or 328
23
U.S. v.Lapp,244Fed 377;Crawford-The construction of statutes, 1940,p.170

14
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
Peoples 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

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
24
Jashim Ali Chowdhury lecturer Department of Law metropolitan university published in
metropolitan university journal Vol-2,N-1.p(161-171)
25
Anwar hossain Chowdhury v Bangladesh 1989 BLD (Spl)1 AD 198
26
Mahmudul Islam. Constitutional law of Bangladesh. second edition. p.392

15
of the 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 amended 27.
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
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
27
Anwar hossain Chowdhury v Bangladesh 1989 BLD (spl)1,para 411,415,608,and 615
28
Mahmudul Islam. Constitutional law of Bangladesh. second edition. p.391

16
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 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 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 process30
29
Anwar hossain Chowdhury v Bangladesh 1989 BLD (Spl)1 AD 198
30
The 5th Amendment Case 14 BLT (Spl) p199).

17
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. 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. Parliament's plenary legislative power is subject to
judicial review while the constituent power is not. Hence the Court may invalidate a

18
law but not a constitutional amendment. This again has been sharply rejected in
Kehsavananda Bharati v. State of Kerala (1973) in India 31. 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.

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
31
Keshavananda Bharati v. Kerala, AIR 1873 SC 1461
32
Anwar hossain Chowdhury v Bangladesh 1989 BLD (Spl)1 AD 198
33
Anwar hossain Chowdhury v Bangladesh 1989 BLD (spl)1,para.256.

19
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 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

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

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.

20
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.
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 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.

36
Justice Mustafa kamal.Bangladesh constitution: trends and issue, reprint 2001.p.95.
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

21
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 : 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,

39
Jashim Ali Chowdhury .Lecturer Department of Law Metropolitan University. published in
Metropolitan university journal Vol-2 N-1.p(161-171)
40
Visit on http///www.the daily star.net/law/2004/06/02/index.htm

41
41 justice Mustafa kamal.Bangladesh constitution: trends and issue, reprint 2001.p.96.

22
and aspirations of people of a country. There are certain basic principles on which a
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 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

42
Barrister Harun ur Rashid. The Daily Star Law and Rights published on 02/06/2004
43
justice Mustafa kamal.Bangladesh constitution: trends and issue, reprint 2001.p 104
44
justice Mustafa kamal.Bangladesh constitution: trends and issue, reprint 2001.p.104
45
Anwar hossain Chowdhury v Bangladesh, 1989 BLD (AD) p.198.

23
parliaments 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

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 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
46
Mahmudul Islam, constitutional law of Bangladesh, second edition,2002,p.402.
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 ,first edition 1997.p.978.
49
Ibid.p.979.

24
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 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 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
50
Ibid, p.981.
51
A.K.M.Shamsul Huda.the constitution of Bangladesh, volume-2 ,first edition 1997 . p.966.

25
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 important 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

52
A.K.M.Shamsul Huda.the constitution of Bangladesh, volume-2 ,first edition 1997,p.971

26
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

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 peoples 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 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 parliaments 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

53
Mahmudul Islam, constitutional law of Bangladesh, second edition,2002,p.394
54
Subba Rao CJ in Golak Nath v. State of Punjab AIR 1967 SC 1643
55
(A.B.M Kahirul Haque J in Moon Cinema Case Page 42

27
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 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, 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

56
Anwar hossain Chowdhury v Bangladesh, 1989 BLD (AD) p.213.
57
Writer jashim ali Chowdhury.Lecturer Metropolitan University. published in Metropolitan University,
journal Volume-2, Number -1 p.161-170.

28
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 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

29
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
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 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.

30
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 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 that no law should be enacted that might be derogatory to the person

31
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 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

32
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 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 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

33
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 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 for the purpose, is unable to or does not,

34
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

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

58
Burhanuddin Ahmed, former Deputy Secretary of Election Commission., The daily star, Law and our
Rights, published on 03/04/2004.
59
A.K.M.Shamsul Huda, The Constitution of Bangladesh, First edition, 1997.volume-2.p.974.

35
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,

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 constitutional 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

60
Visit on http://en.wikipedia.org/ wiki/Basic_structure#Extending_the_doctrine_.281981.29
61
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 Rajeev dhavan,s a basic structure doctrine- A foot not comment- India
constitutional Trends and issues (1978) Bombay.
63
Fazlul Qader chowdhury V. Abdul Huq,PLD 1963 SC 486-18 DLR 69.

36
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

(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.

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 1461
67
Keshavananda Bharati v. Kerala, AIR 1873 SC 1461
68
Ibid.
69
Ibid.
70
S.P. Gupta v. Union of India 1982 Sc 149.
71
S.P. Gupta v. Union of India 1982 Sc 149
72
Ibid.
73
Ibid.
74
Menerva Mills Ltd v. India AIR 1980 SC 1779
75
Indira gandhi V. Raj Narain,AIR 1975 Sc 2299

37
(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'

(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

76
Menerva Mills Ltd v. India AIR 1980 SC 1779
77
Indira gandhi V. Raj Narain,AIR 1975 Sc 2299
78
A.K.M.Shamsul Huda, The Constitution of Bangladesh, First edition, 1997.volume-2.p.977.

38
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

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 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

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

39
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 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 Shahabuddin Ahmed J gave a
80
Jashim Ali Chowdhury .Lecturer Department of Law Metropolitan University. published in
Metropolitan university journal Vol-2 N-1.p(161-171)

40
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 Presidents 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 Administrators power to amend the 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 couldnt 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

41
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 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 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

81
Jashim Ali Chowdhury .Lecturer Department of Law Metropolitan University. Published in
Metropolitan university journal Vol-2 N-1.p(161-171)
82
Mahmudul Islam, constitutional law of Bangladesh, second edition, 2002, p.406.

42
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' What cannot be done directly'
can not be done indirectly.83

Chapter: 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
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
83
Secretary, Ministry of Finance Vs. Masdar Hossain 52 DLR(AD)82
84
Anwar hossain Chowdhury v Bangladesh 1989 BLD (Spl)1 AD 198
85
Seervai Constitutional Law of India, Vol.II, page 1568

43
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 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.

44
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:

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.

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.

86
Md.Abdul Halim,Constitution,constitutional law and politics: Bangladesh perspective, second
edition:September,2003.p.411,412

45
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 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 centre point judges should explain and nourish the doctrine. It is
pertinent to mention here that Justice Muhammad Habibur Rahman in 8th

46
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'

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.

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

47
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

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

88
Keshavananda Bharati v. Kerala, AIR 1873 SC 1461
89
Indira Gandhi v. Raj Narayan AIR 1975 Sc 2299.

48
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.

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 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

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

49
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

Chapter: Eight

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

50
 Conclusion

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:

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 case of Bangladesh the
judges could not come into a unanimity as to what constitute basic feature' of the

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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 Peoples 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 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

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

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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.

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.

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