The risk of abusive constitutionalism

Dr. Ridwanul Hoque is Professor of Law at the University of Dhaka. He was a Commonwealth Scholar at SOAS, University of London, where he studied for his PhD in comparative public law. Dr. Hoque has authored a book titled "Judicial Activism in Bangladesh: A Golden Mean Approach (CSP: 2011)" and many articles in the field of constitutional law. Emraan Azad and Psymhe Wadud from Law Desk recently interviewed Dr. Hoque in the wake of the Constitution Day 2017.

Law Desk (LD): On 4 November 2017, Bangladesh has celebrated forty-five years of founding of its constitution. As a constitutional law scholar, how do you see the culture of amending the constitution in Bangladesh?

Ridwanul Hoque (RH): The Constitution came into operation in December 1972 and the Parliament was formed in March 1973. The Constitution of Bangladesh has so far witnessed 16 amendments, the first was in 1973 and the latest in 2014. Observing the history of all amendments, it can be said that we do not have a positive culture of constitutional amendment. We have to look at constitutional amendments, either formal or informal, as a political exercise to change the constitution. The formal constitutional amendments require an official process endorsed by the Parliament. Constitutional amendment is itself a culture, and you can adopt one of the two approaches to constitutional amendments:

Firstly, you may have a need for change or you have already experienced a constitutional change in the polity and then you go for a formal amendment. Secondly, you are not quite sure whether you need a constitutional change, but maybe you are deciding narrowly politically to have some political gains for which you need to amend the constitution. This latter approach is absolutely not good for constitutionalism. 

Of the first approach, one example might be the post-1990 12^th amendment in the wake of democratic transition. At the time, there was a consensus among the major political parties that they would go for a parliamentary model of democracy with which Bangladesh began its constitutional journey. There was no dispute or objection to the change. First of all, parliamentary democracy was the founding value in the original constitution of 1972. Secondly, after a long absence of this value, since 1975 down to 1990, the major political parties came to an agreement or consensus that they would revert to the parliamentary form of democracy. Then they did bring about the 12^th amendment. As of today, this has been the best example of the first approach.

An example of the second approach might be the 16^th or the 15^th amendment. Before the 15^th amendment was done, there was no political consensus or even a demand in society to remove the Caretaker Government (CtG) system. It means that society was not ready to take it off the constitution. In other words, the people did not give its consent to the removal of the CtG system because it was not working or was ‘anti-democratic’. By the 15^th amendment, what the then Parliament did was the abolition of the CtG system without a pre-existing consensus for constitutional change. This is other way around of how to do constitutional amendments, which is not conducive for constitutionalism.

Again, by the 16^th amendment, parliament basically restored an original constitutional provision. Seen in light of that perspective, we cannot technically say that this is not for constitutionalism, but rather to intervene into independence of the judiciary. We cannot say that. But once again, there was no political consensus that this particular system of parliamentary removal of judges (article 96) should be restored which was in the original constitution, but then remained absent from the constitution for a long, long time. Moreover, another system (namely the Supreme Judicial Council) was in place before the 16^th amendment’s restoration of original article 96. Viewed in light of these background contexts, the 16^th amendment is an example that shows all the traits of a good constitutional amendment, but if we dig deep into its objective, context, and political background, we see that this is a problematic constitutional amendment, deficient in legitimacy derived from political consensus.

As such, amending constitution is a culture; it is either democratic or plurality-conscious, or authoritarian or devoid of effective public participation. To qualify as democratic, amendments must be predicated upon a minimum level of consensus in society vis-à-vis a political or constitutional change. When that is not the case, we sometimes use a special phraseology called ‘abusive constitutionalism’ to refer to the change brought about. Abusive constitutionalism is a case where the body politic often shows that a particular amendment is needed and it has been done complying with all the procedures, but that is actually not the case. It is indeed a scenario of colourable exercise of parliament’s amendment power.

LD: Would you consider the 4^th amendment to the constitution as one of the examples of ‘abusive constitutionalism’?

RH: By definition, it is more than that or something else. If you want me to describe abusive constitutionalism, it is something of a camouflaged idea that the constitutional amendment is for a good purpose but in fact it is not. Of course, I agree that there was a political context and history behind the 4^th amendment. But if you look at its content, – the pack of changes that was brought about through this amendment – you will see many things were against the basic structure of the constitution. A big issue was the independence of the judiciary and also political pluralism, both of which were integral parts of founding constitutionalism. With regard to these two aspects, the 4^th amendment is a major shift from the original constitutional terrain to sort of un-constitutionalism. Once again, I am saying, there were perhaps some given contexts. Nevertheless, if you judge the amendment in terms of modern principles of the rule of law, democracy and constitutionalism, it is very difficult to support any of the changes that were made by the 4^th amendment. 

LD: Was the 4^th amendment to the constitution challenged ever? If it was, what was the view of the judiciary?

RH: Some people blame that the 4^th amendment was never challenged. There are several factors involved. First of all, that a constitutional amendment can be challenged before the court is a debateable idea by itself, which has attracted the allegations of democratic deficiency or counter-majoritarianism. However, we entrenched the doctrine of basic structure only in 1989. The 4^th amendment was brought about in 1975. From 1975 down to 1989, there was a long and continuous absence of democracy. The question of challenging vires of the 4^th amendment came only after 1990, if at all. After democratic restoration or transition in 1990, Bangladeshi constitutionalism had a number of other priorities to focus on.  On the other hand, the things that were undone by the 4^th amendment (such as the problem of judicial independence) were largely remedied during this period. Thus, the bad effect of the amendment was taken care of. Therefore, the need for challenging the 4^th amendment did not actually arise in that way. However, in Hamidul Huq Chowdhury v Bangladesh (1981) 33 DLR (HCD) 381, a case decided interestingly during an autocratic regime, this issue was discussed. It was not a challenge per se against the 4^th amendment, but the court relevantly commented on whether the 4^th amendment was constitutional. The High Court Division (HCD) said that the 4^th amendment broke down many basic tenets or structures of the constitution. Despite that, the court did not strike it down; it was merely making what can be said a declaration of incompatibility, a pro-political-constitutionalism concept that we often see in the UK. In the United Kingdom, the court cannot declare an Act of parliament unconstitutional, it can only declare an Act incompatible with the European Convention of Human Rights. And after that sort of declaration of incompatibility, parliament reconsiders the Act by way of either repealing the Act totally or bringing about changes according to the court ruling.

In Hamidul Huq Chowdhury, the HCD did the same thing. Its reasoning was that long time had elapsed and the things that were unconstitutional were largely remedied, so there was no need to declare the 4^th amendment unconstitutional. When that case went to the Appellate Division, the court took a procedurally strategic stance, not saying anything about the legality or otherwise of the 4^th amendment. The Appellate Division virtually held that the main issue for adjudication in the HCD was not the vires of the 4^th amendment. It exercised what can be said ‘judicial economy’.  

Also, in the first decision of the Supreme Court on constitutional amendment , the Appellate Division deliberated upon the 4^th amendment and more than one judge (particularly Justice Shahabuddin Ahmed) in the 8^th Amendment Case said that the 4^th amendment destroyed basic features/structures of the constitution. This issue came up quite relevantly, because the court was basically dealing with the legality of another constitutional amendment.

LD: How do you assess the role of Supreme Court as the guardian of the constitution in interpreting the constitution?

RH: I do personally subscribe to the view that Supreme Court is the guardian of the constitution, which is not an undisputed concept. If you look into international literature, you see many scholars do not recognise that the Supreme Court is the guardian of the constitution. According to them, constitution is the property of the people and the three organs of the State are equally empowered (might not be competent) to see that their constitution is being implemented. And for that purpose, every single organ is interpreting the constitution and we have heard of the idea of extra-judicial interpretation of the constitution. It is basically interpretation by the political executive. From parliament’s perspective, it certainly does not interpret the constitution, so to say. What it basically does is that it upholds or seeks to comply with the mandates of the constitution by enacting law. However, regarding a particular dispute over the meaning of the constitutional mandates, norms and principles, the responsibility is definitely upon the Supreme Court.

The Constitution of Bangladesh gives the power to enforce fundamental rights specifically to the Supreme Court. And, Article 7 says that the constitution is supreme, people are supreme. If you look at Articles 7, 26, 44 and 102 as well as the total scheme of the constitution and the preamble thereof, you will see that it speaks of a society in which fundamental human rights, rule of law and democracy shall have prominence. If that be the case and the allegation is against the parliament or the executive, who else than the Supreme Court will come forward as the guardian of the constitution?

LD: The Supreme Court itself was indirectly a party to the 16^th Amendment Case. On one hand, the Supreme Court is the guardian of the constitution and on the other hand it adjudicates its own matter. How do you think that the court can deal with such a situation?

RH: It is a daunting challenge for the court to overcome, when institutional self-interest becomes entangled with other issues in a particular dispute. The 16^th amendment is one example of such difficult cases. One aspect that I am not that content with is that the court did not at all acknowledge that they had a stake. In the 16^th Amendment Case, with other constitutional issues, court’s leadership, power, institutional interest and position were intricately linked. When an amicus curia politely drew the attention of the court to the fact that the issue at hand was virtually an issue closely connected with the Supreme Court and therefore the court needed to be extremely cautious, the court reacted quiet insensitively. From one perspective, you can say that this is a debate or struggle between constitutional prominence of the judiciary on the one hand and that of the parliament or the executive on the other. But do you have any other organ to call upon to resolve the issue? There is no other organ which should be entrusted upon to deal with such a case. Therefore, the court had to be extremely cautious, judicious, and a believer in the doctrines of fidelity to the constitution, popular sovereignty, and constitutional supremacy. Time has not yet come to conclusively determine whether the court has done the right thing in the 16^th Amendment Case, because we all know that a review is imminent and maybe a petition will be filed in this month. Let us better wait and see what time has in its treasure for the 16^th amendment decision.

LD: Is it possible to change the original decision given by the Appellate Division by means of review?

RH: Yes, it is possible if there are enough new circumstances to convince the court that they should altogether overrule or change their previous stand in the appeal. It is possible both theoretically and practically. But whether or not that would happen depends on a number of factors. It is another major challenge for the Attorney General’s office to come up with cogent evidences and compelling new circumstances to show that the 16^th amendment decision was constitutionally wrong and that it needs to be rectified. If that can be shown to the satisfaction of the court, there is no harm in overruling its own decision.

LD: Do we have any precedent?

RH: Even though less in number, there are certainly precedents. In a few cases of the International Crimes Tribunal, the decisions of conviction were modified by the Appellate Division on reviews. But in constitutional amendment cases, there is no record of alteration of the decision by the Appellate Division on a review. Not all the constitutional amendment decisions went for review, either.

LD: How would you evaluate the state of research in the area of constitutional law in Bangladesh and what would be your advice for young researchers in this field?

RH: We certainly are lagging behind even in comparison to our neighbouring jurisdiction, India, in terms of research on constitutional law. We don’t have any center for constitutional law research in any university. Neither do we have enough researchers. We have several deficiencies in this regard and have resource and infrastructural problems. But that doesn’t mean that we cannot do anything. Beyond resource and structural problems, we also do not have enough will among the established and young researchers to come up with a platform to discuss and debate political and constitutional issues. Sporadically, there are seminars and symposiums which are indeed very good, but they do not have a strong and dedicated institutional shape. I will personally ask the young and enterprising constitutional law scholars to come up with such a platform, either virtual or with physical existence. For example, one initiative could be to establish a Constitutional Law Association which I once had in mind and am also actively thinking about it. Another option could be to develop some blogs specifically dedicated to constitutional law issues. Moreover, existing law journals should extend their focus on constitutional issues, especially in a comparative context. On top of that, for the development of Bangladesh’s constitutional law, there is no alternative to establishing a link among the academics of constitutional law, Supreme Court judges, and practising lawyers. It could be done through any university or any institution like BILIA (Bangladesh Institute of Law and International Affairs). Only then, all the three branches of the legal profession may effectively and interactively engage in constitutional law issues.

LD: Many thanks for your time.

RH: You are very welcome.