The reason we need a new constitution

The debate regarding a new constitution for Bangladesh has now reached mainstream politics. Responding to the discourse, the interim government has recently formed a nine-member commission for constitutional reform. In my opinion, adopting a new constitution for Bangladesh is a must if we want to achieve a robust democratic system with peaceful transitions of governmental power and I presuppose that the new constitution will be adopted by a democratically elected constituent assembly, not the interim government. Moreover, a fresh constitution is a must if we want to bypass the problem of the doctrine of basic structure, otherwise, all substantial constitutional changes that may be brought to reform the country may be reversed.

The judiciary imported the doctrine of basic structure into our legal system through the Anwar Hossain Chowdhury v Bangladesh (1989) case and applied it in other important constitutional instances in which the legality of a constitutional amendment was challenged. The basic structure doctrine notes that the constitution has an unamendable basic structure. It holds that the parliament's power to amend the constitution has inherent limitations, and an amendment will lose its legality if it changes the basic structure of the constitution. In simpler words, the constitution cannot be amended in a way that it loses its identity.

In theory, the doctrine of basic structure is a principle that aims to maintain the integrity of the original constitution. However, the doctrine is intrinsically vague, as discussed in my paper titled "The Intrinsically Uncertain Doctrine of Basic Structure" published in the Washington University Jurisprudence Review. While using the doctrine of basic structure, judges note that certain provisions of the constitution cannot be changed. However, they have not provided an exhaustive list of these unamendable provisions, which allows the judges to decide what the basic structure of the constitution is on a case-to-case basis. Although it reads as an originalist principle, it has also been used to contradict a provision present in the original constitution.

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The reforms needed to fix the problems of the transition of governmental power and restore democracy in Bangladesh would definitely change the basic structure of the constitution. For example, Brigadier General (retired) M Sakhawat Hussain, adviser to the Ministry of Textile and Jute, recently suggested that Bangladesh may be converted into a federal state, dividing the country into five provinces. Some people suggested a shift to a presidential form of government with a strict separation of powers between the executive and the legislature. Some are advocating for a bicameral legislature. However, these proposed reforms would destroy Bangladesh's unitary form of government. The Supreme Court (SC) has previously struck down the Eighth Amendment that decentralised the High Court Division of the SC because the decentralisation changed the unitary form of the government, which is connected to the basic structure of the constitution. Similarly, the SC might strike down any amendment that challenges the unitary form of government.

If the current constitution stays, the basic structure doctrine will remain. If we try to amend the constitution to get rid of the basic structure doctrine, that too would be a violation of the basic structure and can be struck down by the court. The Indian Parliament has tried innovative ways to amend the basic structure away, but their Supreme Court struck down those amendments.

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One way to ensure that the doctrine of basic structure is not used to reverse any substantial progress we achieve in restoring democracy in Bangladesh would be to make the constitutional amendment-making process more rigid. If the process possesses more democratic legitimacy, the court would lose its justification for using the basic structure doctrine. Consider the US system: their Supreme Court is theoretically as powerful as its Indian and Bangladeshi counterparts. However, the US Supreme Court has never struck down a constitutional amendment because the US Constitutional amendment-making process is very rigid and has a lot of democratic legitimacy. An amendment to the US Constitution can be proposed by either two-thirds of the two chambers of US Congress or by a request of two-thirds of the US states through a special convention called for that purpose. A proposed amendment must be ratified by three-fourths of all states to be valid. Because of its rigid nature, the US Constitution has been amended only 27 times despite more than 11,000 attempts. An amendment passing such a long and rigorous process with multiple democratic hurdles cannot be struck down by the judiciary without facing severe criticism.

Unfortunately, making the constitutional amendment process more rigid may also alter the basic structure of the constitution and may be reversed by the Supreme Court of Bangladesh. Thus, to ensure that the constitutional reforms remain unaffected by the politicisation of the judiciary, we have no other option but to adopt a new constitution by calling a constituent assembly.

Nafiz Ahmed teaches jurisprudence at North South University. He can be reached at: na538@cantab.ac.uk.

Views expressed in this article are the author's own.

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