DISCUSSION ONTHE 8TH AMENDMENT CASE

“A Constitution is not merely the outline of the governmental structure; it is the embodiment of the hopes and aspirations of the people cherished all the years and includes the nation's high and lofty princi ples and people's life philosophy.”

-Per Justice Shabuddin Ahmed.

ACKNOWLEDGMENT

Our salute, deepest respect and best regard for this legend, to our honorable teacher, Dr. Ekramul Haque chowdhury, who has opened a new arena in the course of Constitutional Law.

We, the 39th batch are grateful to this legend.

THANKS FOREVER SIR

CONTENTS OF THE PRESENTATION

• Introduction• Background of Constitutional Amendment Cases - Imtiaz• Significance of the Judgment - Naeem • The Judgment - Mymanah• Basic Structures -Monir• Constituent Power vs. Constitutional Power - Joydev• Criticism - Sohan

BACKGROUND OF CONSTITUTIONAL AMENDMENT CASES

IN BANGLADESH

Constitution

Parliament

Executive

Judiciary

THE FIRST MARTIAL LAW• From August 15, 1975 to April 9, 1979

• The Constitution (5th Amendment) Act, 1979

• It has been declared illegal, Void and non-est by the Appellate Division of the Supreme Court in Khandakar Delwar Hossain/Munshi Ahshan kabir

and others Vs Bangladesh

• Italian Marble Works Ltd. and other (Civil petition for leave to apple No.

1044,1045/2009), 62 DLR (AD) 298.

• The Enforcement of Some Ordinances proclaim from August 15, 1975 to April 9, 1979 (special provision) Act, 2013.

THE SECOND MARTIAL LAW• From March 24, 1982 to November 11, 1986.

• On 8may 1982, the Proclamation ( Second Amendment) Order of 1982 was issued( initially Rangpur, Comilla, Jessore, and later Chittagong, Sylhet and Barisal),

• The constitution (7th Amendment) Act, 1986.

• It has been declared illegal, without lawful authority, void ab-initio and is invalidated by the High Court Division of the Supreme Court in Siddique Ahmed Vs Bangladesh, 2011,63 DLR 565.

• The Enforcement of Some Ordinances proclaim from March 24, 1982 to November 11, 1986 (Special provision) Act, 2013.

THE CONSTITUTION (THIRTEENTH AMENDMENT) ACT,

1996• It has been declared illegal and unconstitutional by the Appellate Division

(by a majority of 4 to 3) of the Supreme Court of Bangladesh in Abdul

Mannan Khan Vs Bangladesh (Civil appeal No:139 of 2005), 64 DLR (AD).

• The Constitution (Fifteenth Amendment) Act, 2011.

• Insertion of Article 7B namely basic provision of the constitution are not amendable (the preamble, all articles of part I, part II, part III, and the provisions of articles relating to the basic structures of the constitution including article 150).

THE CONSTITUTION (EIGHTH AMENDMENT) ACT, 1988

Creation of six permanent benches of the High Court Division outside capital by amending Article 100 of the constitution.

The Amendment so far as it related to the creation of permanent benches of the High Court Division was found to be ultra virus the constitution by the Appellate Division (by a majority of 3 to 1) in Anwar Hossain Chowdhury Vs Bangladesh, 1989 BLD Special Issue 1=1989, 41 DLR (AD) 165.

THE JUDGEMENT & IT’S SIGNIFICANCE

5th Amendment of Bangladesh constitution was repealed in 2005.

7th Amendment of Bangladesh constitution was repealed on 15th may 2011.

13th Amendment of Bangladesh constitution also was repealed by same verdict at the same time.

But interestingly the 8th amendment was repealed before all of those amendments on 2nd September, 1889.

POINT TO BE NOTED

8TH AMENDMENT CASE…?

In Anwar Hossain Chowdhury vs. Bangladesh 19 BLD (Spl) 1 amendment in Article 100 was challenged. On the question whether the amendment affected the basic structure of the Constitution, 3 learned Judges found the High Court Division (HCD) with plenary judicial power over the entire Republic is a basic structure of the Constitution and the amendment having destroyed the plenary judicial power of the HCD altered the basic structure of the Constitution and is, therefore, void.

JUDGES INVOLVED IN THIS CASE

1. Badrul Haider chowdhury, J2. Shahabuddin Ahmed , J3. M.H. Rahman, J4. A.T.M Afzal, J (dissenting)

THE INVALIDATED ARTICLE 100...100. Seat of Supreme Court1. Subject to this article, the permanent seat of the Supreme Court shall be in the capital.2. The High Court Division and the Judges thereof shall sit at the permanent of the Supreme Court and at the seats of its

permanent benches.3. The High Court Division shall have a permanent bench in Barishal, Chittagong, Comilla, Jessore, Rangpur and

Sylhet, and each permanent bench shall have such Benches as the Chief Justice from time to time determine.

4. A permanent bench shall consist of such number of judges of the High Court Division as the Chief Justice may deem it

necessary to nominate to that Bench from time to time and on such nomination the Judges shall be deemed to have

been transferred to that Bench.

5. The President shall, in consultation with the Chief Justice, assign the area in relation to which each permanent bench

shall have jurisdictions, powers and functions conferred or that may be conferred on the High Court Division by this

constitution or any other law; and the area not so assigned shall be the area in relation to which the High Court Division

sitting at the permanent seat of the Supreme court shall have such jurisdictions, powers and functions..

6. Chief Justice shall make rules to provide for all incidental, supplemental or consequential matters relating to the permanent Benches.

In words of BH Chowdhury J. such permanent Benches of the High Court Division with mutually exclusive jurisdiction is entirely outside the contemplation of the Constitution:

‘The Amended sub Article (5) has disrupted structural balance that was carefully erected in Part VI of the constitution........Sub-article (5) has clearly destroyed the structural pillar of the Constitution as given in Article 94 and thus has violated the mandate of the constitution and further brought itself within the mischief of the provisions of Article 7(2).’

Shahbuddin Ahmed J. remarked that due to the amendment the original High Court Division has lost its existence and a complete new version of it has arisen:

‘The High court Division as an integral part of the Supreme Court has lost its original character as well as most of its territorial jurisdiction. Seven judicial bodies, by whatever name they are called, Benches or courts, are, to all intents and purposes, independent courts having no relation with each other except a link through the chief Justice...... The High Court Division, as contemplated in the unamended Article is no longer in existence and as such the Supreme Court, one of the basic structures of the constitution, has been badly damaged, if not destroyed altogether.’

However, ATM Afzal J. stood in marked contrast with the other judges. In his dissenting opinion, coming to the conclusion that the amendment did not impair the integrity of the High Court Division, ATM Afzal J. commented: 

“The entire argument on behalf of the appellants....... that by assigning the areas to the permanent benches and leaving the residue to the High Court Division sitting at the permanent seat, the jurisdiction of the Judges on those Benches have been limited to the areas thus assigned (territorially limited) and as such they have ceased to be Judges of the High Court Division exercising plenary power through out the Republic as envisaged under the Constitution. If this assumption is correct....the argument...that High Court Division, a structural pillar of the Constitution, has ceased to exist.”...................“It is clear that in matters of exercise of judicial power, the High Court Division has been treated separately in the Constitution and the impugned amendment is but only an extension of such treatment. What is important to remember is that no other Article of Chapter I has been amended (except 107(3) which is consequential). Hence it must be presumed that the integrity of the Supreme Court/High C ourt Division with its unlimited territorial jurisdiction has not been impaired and the High Court Division has remained one as before and therefore the impugned amendment has to be construed in harmony with all other provisions of Chapter I.”

Implications of the case

The Judiciary has got a final say over the power of the parliament to amend the Constitution.

Concept of basic structures has been introduced in Bangladesh.The people of have seen a brave instance of constitutional

supremacy.

JUDGEMENT IN A NUTSHELL

B.H. CHOWDHURY, J.

• The validity of a constitutional amendment lies in the touchstone of Article 7.

• Amendment implies an improvemetn on the existing provisions.

• Preamble is unamendable.

• Constituent power is in the hand of the People.

• Number of unique features are 21. Some of them are basic structure, but those are not specified.

• The amendment has directly violated Article 102 & 44 and disrupted Article 94.

SHAHABUDDIN AHMED, J.

• A constitutional amendment is not ‘law’ within the meaning of Article 7 as well as Article 26. It follows a special procedure and not altering any basic structure or essential feature of the Constitution becomes a part of the Constitution.

• Preamble is a guide to the interpretation of the Constitution.

• 8 specific basic structure and they are unamendable.

• The impugned amendment has broken the oneness of the HCD and thus destroyed the ‘Independence of Judiciary’, one of the basic feature of the Constitution.

M.H. RAHMAN, J.

• Preamble is the pole star.

• Appeals were only concerned with a basic feature ‘rule of law’.

• The amendment impaired rule of law.

A.T.M. AFZAL, J.DISSENTING

• Rejected the idea of basic structure.

• The word amendment has a built in limitation.

• Destruction of three structural pillars- Executive, Legislature & Judiciary, render the Constitution defunct and unworkable.

• To feat the validity of any amendment .................................

• The amendment has not destroyed the HCD’s jurisdiction & power in a manner that make the Constitution unworkablr and so not ultra vires.

BASIC STRUCTURE !?

THE DOCTRINE OF BASIC STRUCTURE

What actually is meant by the doctrine?What subject-matters will come under the category of basic structure’?Which particular features of a constitution are basic and which are not?

In 8th Amendment case, B.H. Chowdhury, J. identified 21 features

In the same Judgement, Shahabuddin Ahmad, J. identified 8 features

In India, more than half of the provisions of the Indian Constitution are

declared to be basic and the list is still open (?).

Gist of the dictum is ....o parliament could not use its amending powers to

damage”, “destroy”, “abrogate”, “change”, or “alter” the basic structure or framework of the constitution

Origin of the doctrine was found in Abdul Haque V. Fazlul Qader Chowdhury, PLD 1963

“Franchise or form of Government are fundamental features of a constitution.”

The celebrated doctrine of Basic Structure is the most outstanding constitutional “Invention” of the Indian Supreme Court in Kesavananda v State of Kerala, AIR 197

Recognition in bangladesh through the Constitution 8th amendment case [Anwar Hossain V. Bangladesh, 41 DLR (AD) 165]

PHILOSOPHY UNDERLYING THE DOCTRINE OF BASIC STRUCTURE

“Basic structures of the Constitution' mean structural pillars on which the Constitution rests and that if these structural pillars are demolished the entire

constitutional framework will crumble.” Dr. Kamal Hossain in Re Anwar Hossain Chowdhury case

“The doctrine of basic structure cannot be rejected if consequence of its rejection is taken into consideration “

Shahabuddin Ahmed, J in Re Anwar Hossain Chowdhury case

“The consequences of rejecting the doctrine of basic structure would be so grave and so opposed to the objec tives of the Constitution that the consequence

of uncertainty would be insignificant by comparison.”, H.M. Seervai in Constitutional Law of India, Vol. 2, P. 1568; quoted by

Shabuddin Ahmed, J in Re Anwar Hossain Chowdhury case

IMPORTANCE OF THE DOCTRINE IN COUNTRIES LIKE US.....

• To prevent ‘Parliamentary Supremacy’.

• To check the laws for the good governance of the country.

• “Main objection to the doctrine of basic structure is that it is uncertain in nature and is based on unfounded fear. But in reality basic structures of a Constitution are clearly identifiable. "Sovereignty" belongs to the people and it is a basic structure of the Constitution. ....If by exercising the amending power people's Sovereignty is sought to be curtailed it is the constitutional duty of the Court to restrain it and in that case it will be improper to accuse the Court of acting as "super-legislators"..... Sometimes it is argued that this doctrine of bar to change of basic structures is based on the fear that unlimited power of amendment may be used in a tyrannical manner so as to damage the basic structures. In view of the fact that "power corrupts and absolute power corrupts ab solutely", I think the doctrine of bar to change of basic structure is an effective guarantee against fre quent amendments of the Constitution in sectarian or party interest in countries where democracy is not given any chance to develop.”

-Per Shahabuddin Ahmed, J in Re Anwar Hossain Chowdhury case

PROBLEMS OF BASIC STRUCTURE

The concept of basic structure has put the Judiciary on the top of the power structure.

This will give rise to differences of opinion among the judge which has been seen in every case upholding “basic structure” doctrine.

The never ending and ever expanding list of basic structures is creating nothing but confusion and inconsistent application.

CONSTITUENT POWER & AMENDING POWER

A little discussion......

CONSTITUENT? & CONSTITUENT POWER

• something that constitutes another, • that helps make up or • complete a unit or a whole.

• In constitutional jurisprudence this term ‘constituent power’ is associated with the power of making a new constitution or any instrument in the nature of a constitution.

• ‘Constituent' includes the power not only 'to frame' but also 'to alter a political Constitution'.

• (The con cise Oxford Dictionary)

AMENDMENT....• Latin "amender,“ means to correct.

• "Murphy's Constitution, Constitutionalism and Democracy“

• According to Crawford, in his Statutory Construction-• Amendment is a change in some of the existing provisions of a stat ute...in some way changed or al

tered in order to make it more complete or perfect or effective.• is not the same as a repeal although it may operate as a repeal, to a certain de gree.

• A change or alteration, for the purpose of bringing in improvement in the statute to make it more effec tive and meaningful, but it does not mean its abro gation or destruction or a change resulting in the loss of its original identity and character

Shahabuddin Ahmed, J in Re Anwar Hossain Chowdhury case

SO...

• Amendment is the correction of errors of commission or omission, modifies the sys tem without fundamentally changing its nature.

• It operates within the theoretical par ameters of the existing Constitution.

• “The power to amend the Constitution is different from the power to amend ordinary' law.”

• Patanjali Sastri, J, in Re Shankari Prasad case

AMENDING POWER IS LIMITEDThe amending power is a power given by the Constitution to Parliament.

An amendment, if it is made strictly following the prescribed procedure and does not alter any basic structure or essential feature of the Constitution, becomes a part of the Constitution whereupon it derives the same sanctity as the Constitution itself.

Shahabuddin Ahmed, J in Re Anwar Hossain Chowdhury case

Implied limitation on legislative competence. Article 7B is a good example.

The power to frame a Constitution is a primary power whereas a power to amend a rigid constitution is a derivative power derived from the constitution.

Validity of a law is tested by the touch stone of the Constitution; but there is no such touch-stone to test the validity of the Constitution. Its validity is inherent and as such it is unchallenge able Validity of a law is tested by the touch stone of the Constitution; but there is no such touch-stone to test the validity of the Constitution. Its validity is inherent and as such it is unchallenge able.

Shahabuddin Ahmed, J in Re Anwar Hossain Chowdhury case

An amendment is made in compliance with the terms of Article 142 it becomes a part of the Constitution and the question of its validity under the Constitution will no longer arise. But for an amendment to attain this status it must, first of all, satisfy the terms of the amending article itself.

‘A substantial differ ence between Constitution and its amendment. Be fore the amendment

becomes a part of the Constitu tion it shall have to pass through some test, because it is not

enacted by the people through a Constitu ent Assembly. Test is that the amendment has been

made after strictly complying with the manda tory procedural requirements, that it has not been

brought about by practising any deception or fraud upon statutes and that it is not so repugnant

to the existing provision of the Constitution that its co existence therewith will render the

Constitution un workable, and that, if the doctrine of bar to change of basic structure is

accepted, the amendment has not destroyed any basic structure of the Constitu tion.’

Shahabuddin Ahmed, J in Re Anwar Hossain Chowdhury case

IT IS UNLIMITED.........BECAUSE• Governmental power is derived from the ‘consent of the people’. Since it is

derived from the ‘consent of people’, it is supreme and absolute.

• All the provision of the Constitution are essential and no distinction can be made between es sential and non-essential feature from the point of view of amendment unless the makers of the Consti tution make it expressly clear in the Constitution it self.

• Under Article 142-• no substantive limitation on the power of the parliament to amend

any provision • no express limitation on the amending power.• opens with a Non Obstante Clause.• any provision evidently includes all provisions.

CRITICISM

• Constitutional amendment upholds public interest can be violative of basic structure.• Constituion is hard to amend but not unamendable.

“The task of the excellent teacher is to stimulate "apparently

ordinary" people to unusual effort.  The tough problem is not in

identifying winners:  it is in making winners out of ordinary

people.” K. Patricia Cross

You know the person........He acted as the main inspiration to us to read & understand Constitutional Law with joy & interest.

Thank you............