Book Review
Politics of constitutional amendments in Bangladesh
Ridwanul Hoque
Which of the two organs of the State does amend the Constitution? the legislature or the judiciary? This seems to be the subject matter of a recent book by Md. Abdul Halim: Amendments of the Constitution of Bangladesh: Legislative Versus Judicial (Dhaka: CCB Foundation, 2012). Most amendments of the Bangladeshi Constitution, in terms of both substance and political process, may be critiqued for not meeting the standards of constitutionalism. For example, except for the 15th amendment, no amendment was preceded by examination by any Commission of political proposals. Nor has any amendment been adequately debated and deliberated upon. The pre-enactment consultation for the 15th amendment, although plausible in itself, has defaulted on the question of adhering to comments of those consulted. Put in simple terms, “we the people” have often not been heard by those in power when amending 'our' Constitution. Nevertheless, the myth is that Parliament is supreme (sovereign) in amending the Constitution the way it likes. On the contrary, however, to check the absolute power of Parliament to unmake the Constitution in the name of amendment, the Bangladeshi judiciary in the 8th Amendment Case (1989) adopted and entrenched the basic structure doctrine, thereby 'discovering' (rather than imposing) an implied constitutional limit on Parliament's amending power. In that decision, Justice Shahabuddin Ahmed (1989 BLD (Spl.) 1, at 156) thought that such a bar on Parliament's amending power is “an effective guarantee against frequent amendments of the Constitution in sectarian and party interest”.
Since the 8th Amendment Case, the Supreme Court has, as of today, declared four constitutional amendments (8th, 5th, 7th, and 13th) unconstitutional. How one would see this role of the judiciary? Is it a judicial role in the amendment or making of the Constitution? Or, is it merely a judicial activity in interpreting and enforcing the Constitution as was 'originally' framed by the founding fathers. In Bangladesh, as elsewhere, judges feel shy in acknowledging that they make laws, let alone acknowledging that they 'amend' the Constitution. I am constrained here to be brief, but the readers should be told that many scholars and judges increasingly claim that, top judges have a strategic and legitimate role in the amendment of their respective written constitution (see e.g., Mathew Abraham (2000) in The creation and amendment of constitutional norms). Contemporary scholars across the world increasingly challenge both legislative and judicial supremacy. Instead, they prefer an intermediate position that grants courts a privileged but not supreme role in interpreting the Constitution (Harel & Shinar, 2012, I-CON).
In his book under review, Mr. Halim wants to show that the Bangladeshi judges through constitutional adjudication have played a role in developing the Constitution with reference to supra-constitutional norms. After making as many as fifteen amendments to the Constitution, it is an opportune time to reflect on the quality, desirability and consequences of those amendments. Halim's book is an important starter, to that end. Written in an understandable and student-friendly language, as the author claims himself, the book would provide a useful point of reference for anyone interested in the history of constitutional amendments in Bangladesh.
The book contains three Parts consisting eighteen chapters. First Part, titled 'Introductory', contains two chapters on, respectively, theoretical discussions and the recent 15th amendment. The author discusses the issues of judicial review of constitutional amendments, basic structure doctrine and the ideas of 'originalist interpretation 'and' living constitution, contour of amendment procedures in different countries, and the breadth and limits of the fifteenth amendment to the Constitution of Bangladesh. The author rightly expresses his doubt as to the 'legality' of the 15th amendment. The second Part, titled 'Legislative Amendments', consists ten chapters (3 to 12) where the author mainly produces all the amendments of the Constitution verbatim, but usefully includes a chapter on decrees by military rulers that amended the Constitution. In another chapter, he produces a table to show the alterations/changes (with their present status) brought about by various constitutional amendments. In Part III, titled 'Judicial Amendments', the book contains 6 chapters. In Chapter XIV, the author seeks to explain the nature of judicial amendments, but in effect discusses the nature of judicial declarations of unconstitutionality. In other chapters, the author produces certain Supreme Court judgments that invalidated constitutional amendments. Here, we also find the judgment relating to the history of Proclamation of Independence but not an explanation as to how this decision fits in the Part that deals with 'judicial amendments'? Does this decision really 'amend' the Constitution? Appreciably, however, the author makes his own comments at the end of every decision included in Part III.
A limitation of the book is that, the author eschews a clarification regarding what he means by 'judicial amendments'. Another weakness in my view is that, the substantive part of the book is quite brief, spanning up to page 118 (up to chap. 2) only. Instead of attaching several Constitution-amending Acts and producing the judgments in the main body of the book, the author would have done better to annex them as appendices. This would have given him a wider scope to analyse the constitutional amendments and the judgments more analytically. For being extremely brief on the analytical part, the author seeks to offer an excuse by referring us to his other works. Readers may expect, however, a more detailed discussion of the important issues the book seeks to introduce. For example, the author should have made a distinct chapter on the judicial role vis-à-vis amendments of the Constitution with reference to the basic structure doctrine. Similarly, it can be said that the author could have profitably used the writing and arguments of other scholars (e.g., Alam 1995; Islam 1987, 1996; Karzon & Faruque 1998) on constitutional amendments and the judicial role.
These criticisms notwithstanding, the book should be vital aid to students of law, lawyers, judges and legal educators. Political and legal historians would find the book equally useful. I wish the book a wider readership.
The reviewer is an Associate Professor of Law at the University of Dhaka.
