The then Chief Justice in the case of Abdul Mannan Khan v Bangladesh [2012] 64 DLR (AD) 169 noted that the 13th constitutional amendment was challenged by way of a writ petition filed under article 102 of the Constitution. In fact, all of the five constitutional amendments hitherto annulled by the Supreme Court (SC) were challenged in lawsuits commonly known as 'writ petitions'. Writ petitions are filed exclusively under article 102, and therefore, in popular parlance, it is called the 'writ jurisdiction' of the SC. Since the SC has decided validity of constitutional amendments in an apparent exercise of the writ jurisdiction, the first and foremost question to arise should have been whether lawsuits challenging constitutional amendments are at all admissible under article 102, and also, whether article 102 invests the SC with the authority to invalidate a constitutional amendment. Interestingly, the SC in none of the five cases dealt with this question particularly. This essay argues that the so-called writ jurisdiction under article 102 does not envisage judicial review of constitutional amendment, and the SC actually decided all such cases in virtue of article 7(2) of the constitution.

Textual meaning of article 102

The text of article 102 shows that the supreme court has the power of judicial review only in two cases - first, declaring any executive or judicial acts, proceedings or laws unconstitutional on the grounds of their inconsistency with the provisions of fundamental rights and secondly, invalidating any 'acts done' or 'proceedings taken' on the grounds of want of lawfulness by any persons performing any functions of the republic or of a local authority.

A reading of article 102(1) along with articles 26, 44 makes it clear that the SC's jurisdiction thereunder is exclusively confined to judicial review of the laws which are inconsistent with the provisions of fundamental rights. Article 26, which although provides that laws inconsistent with the fundamental rights will become void, nevertheless excepts constitutional amendments from meeting the same consequences. The resultant effect is constitutional amendments are immune from judicial review even if they stand at odds with the fundamental rights part of the Constitution.

Judicial review of executive or judicial acts or proceedings done or taken in contravention of any lawful authority falls under article 102(2)(a)(ii). In the said provision, the words, 'act', and 'proceeding' do not mean any legislations or constitutional amendments. In common law tradition, the word 'act' refers to acts, words and omissions and does not include an Act of Parliament [Compare section 3(1a) with section 3(2) of the General Clauses Act, 1897]. Moreover, the Constitution provides that 'law' means any Act, ordinance, order, rule, regulation, bye-law, notification or other legal instrument, and any custom or usage, having the force of law in Bangladesh - which does not include either 'act', or 'proceeding'. Therefore, the wordings of both clause 1 and clause 2(a)(ii) of article 102 cannot be said to accommodate the notion of judicial review of constitutional amendment within their respective linguistic parameters.

Legislative intention

It is evident from the proceedings of the Constituent Assembly that although the framers of the Constitution wanted to incorporate the common law concept of prerogative writs in article 102 with a wider perspective, they did not actually envisage conferment on the SC the jurisdiction to declare a constitutional amendment repugnant. Dr. Kamal Hossain, the Chairman of the Constitution Drafting Committee, explained to the Assembly as follows:

“The way we have drafted article 102, if any authority or person - who exercises governmental authority does anything beyond jurisdiction and anyone suffers injury for that reason, the High Court may issue direction to the concerned authority or person if the aggrieved person makes such application.” (translated by the author)

In addition, the framers were unanimous that the SC should be vested with the power to enforce fundamental rights. Dr. Kamal Hossain further explained:

“The 'writ petition' for the purpose of enforcement of fundamental rights, has been accommodated under the 'writ' jurisdiction. We have incorporated provisions to this effect. We believe the power to enforce fundamental rights should be a part of the Supreme Judiciary.” (translated by the author)

As may be discerned from the foregoing, the Constituent Assembly did not give a thought to judicial review of constitutional amendment while deliberating over the scope of article 102.

The supremacy clause

Article 7, the supremacy clause of the constitution, provides that any law inconsistent with the Constitution will be void to the extent of its inconsistency. Relying on article 7, Justice Badrul Haider Chowdhury in Anwar Hossain Chowdhury & Others v Bangladesh, [1989] 41 DLR (AD) 165 reasoned out that the authority to decide constitutionality of any laws including any constitutional amendment lies with the SC. He said: “When Article 26 says about the inconsistency of any law with the fundamental rights to be void, article 7 operates in the whole jurisdiction to say that any law and that law includes also any amendment of the Constitution itself.... Therefore if any amendment which is an Act of Parliament contravenes any express provision of the Constitution that amendment act is liable to be declared void…But by whom this declaration is to be made?... - obviously the Judiciary.” (para 167, at p. 214).

The aforesaid reasoning also featured in the subsequent cases where the SC declared constitutional amendments repugnant, for example, Italian Marble Works Ltd v Bangladesh [2010] 62 DLR 70, para. 150; Siddique Ahmed v Bangladesh [2011] 63 DLR 565, para. 243; Abdul Mannan Khan v Bangladesh [2012] 64 DLR (AD) 169, paras. 614-615; and, finally Government of Bangladesh and Others v Advocate Asaduzzaman Sidddiqui and Others [Civil Appeal No. 06 of 2017]. The article 7-based argument to justify the SC's jurisdiction over cases concerning validity of constitutional amendment begs at least one fundamental question – if the SC has the power to declare a constitutional amendment repugnant in virtue of article 7(2), why does it then admit such lawsuits under article 102? In other words, how does the SC's purported exercise of article 102 jurisdiction also extend to include remedies available under article 7(2), specially in view of the fact that article 102 itself provides for judicial remedies in definite terms for matters coming within its purview?

Apology and the epilogue

It is quite clear that the practice of admitting lawsuits challenging constitutional amendments under article 102 (or asserting article 102 jurisdiction to take in such cases) is not warranted by literal construction of the said provision, nor reflects the intention of the framers of the Constitution. If article 102 would have sufficed to deal with such cases, there wouldn't be any need for article 7 argument. At this point, one may still question the rationale for making article 102 an issue of academic discussion, specially in view of the fact that the SC's authority to decide validity of constitutional amendments has never been disputed. This particular issue, however immaterial it may look, deserves not to be sidestepped because it concerns credibility and uprightness of the Judiciary which is practically the most important source of legitimacy for any Judiciary. Since the SC is the guardian of the Constitution and serves as the ultimate arbiter of legality of functions of all other branches of the government, even the subtlest feeling of uneasiness about the court's assertion of jurisdiction, if left unaddressed, might harm its image in the public eye.

Finally, the difference between the dictate of law and the court practice can be addressed by amending the SC's rules of procedure so as to enjoin the litigants to file lawsuits challenging constitutional amendments under article 7. The power to make such changes in court procedure lies with the SC under article 107 of the constitution.

The writer is an Advocate, Supreme Court of Bangladesh.