A case against Article 7B of our Constitution

The Constitution of Bangladesh is the highest law of the land. As stated in the preamble and Article 7, our Constitution has been framed to uphold the "solemn expression of the will of the people". The power to amend the Constitution has been vested upon the Parliament by Article 142 of the Constitution to bring necessary changes over time with a view to making the Constitution more dynamic and effective.

However, if the Constitution is amended arbitrarily, it is natural that the Constitution will lose its essence. In fact, some specific features are entrenched in the Constitution itself, which, if amended, will cause the Constitution to deviate from its unique character and purpose.

The inclusion of Article 7B is more political than Constitutional. If the will of the people is not reflected through the Constitution, it loses its spirit and undermines its own legitimacy. The insertion of Article 7B through the 15th Amendment demands serious debate and discussion.

From the case of Anwar Hossain Chowdhury v Bangladesh (8th Amendment case), we get an idea of the basic structure doctrine, according to which, no parliament can amend the basic structure of the Constitution. In light of the 8th Amendment case, the principle of the basic structure got entrenched in our Constitution through the 15th constitutional amendment in 2011. Article 7B states that notwithstanding anything contained in Article 142 of the Constitution, the preamble, all articles of Part I (high ideals), all articles of Part II (fundamental principles of state policy), subject to the provisions of Part IXA all articles of Part III (relating to fundamental rights), and the provisions relating to the basic structures of the Constitution including Article 150 of Part XI shall not be amendable by way of insertion, modification, substitution, repeal, or by any other means.

Such insertion of an "Unamendable Clause" is not unique. Quite a number of countries have adopted such unamendable clause(s) in their Constitution on a limited scale to protect their basic features. For example, France and Germany have moved to make the nature of their respective Republic and Federal Republic unamendable. However, in Bangladesh, the insertion of such a broad unamendable clause collides with the concept of the Constitution being a living document and shrinks space for dynamism or evolution.

It is worth noting that the Constitution can certainly formulate safeguards for itself and has to do so to protect from arbitrary amendments that may potentially undermine its spirit. Any clause that inhibits the power to make amendments to the Constitution rationally bars the functionality of the Constitution itself and essentially limits the will of the people. Moreover, the provisions in Article 7B have also nullified the power of Judicial Review of the Supreme Court. It is not beyond questioning whether the Parliament can declare one-third of the Constitution as its basic structure. As we grapple with the state reforms that have to be undertaken, this should explicitly be brought into question.

There is a debate with Constitutional jurisprudence as to whether and which of the provisions of a Constitution can be treated as its basic structure. In the Indian context, the doctrine of basic structure was comprehensively dealt with in the Kesavananda Bharati v State of Kerela case (1973), where the bench was split 9 to 4 as they delivered the judgment. In Bangladesh as well, in the 8th amendment case, the judges could not agree on what would constitute the fundamental features.

Furthermore, declaring fundamental principles of state policies and rights as unamendable creates obstacles for overall social and financial development. The state policies, as of now, are not enforceable by the courts, whether they (and their so-called unenforceability) can be treated as basic structure of the Constitution, also remains a question. Illustratively, even though education or medical care is not a fundamental right at present, there will be legal barriers to declaring these rights as fundamental rights in the future. Interestingly, Articles 8 and 12 of the Constitution enshrine secularism as a fundamental principle of state policy— an unamendable clause, but Article 2A declares Islam as a state religion permanently. It begs the question of how these two can coexist, and that too, both as part of the basic structure of the Constitution.

The inclusion of Article 7B is more political than Constitutional. If the will of the people is not reflected through the Constitution, it loses its spirit and undermines its own legitimacy. The insertion of Article 7B through the 15th Amendment demands serious debate and discussion.

The writer is Advocate, District and Session Judge's Court, Dhaka.