On the issue of reprinting the Constitution
Tuesday, 14 December 2010
Adnan M L Karim
It should be understood that through the judgment the Supreme Court did not change or amend the Constitution but had "held" the Constitution (Fifth Amendment) Act, 1979 to be illegal and void. Therefore, it is submitted that the Constitution cannot be merely reprinted without going through the amendment procedure in Parliament. Following the decision, Parliament could have followed the amending procedure to comply with the Court's judgment. Alternatively, if nothing was done by Parliament or if it did not possess the requisite majority for amendment, a footnote could have been inserted in the Constitution stating the Court's decision without removing the delinquent provisions from the Constitution.
In India, the Forty-Second Amendment to the Constitution was found to be unconstitutional by the Supreme Court of India. However, it was not removed from the Constitution but remained there with a footnote stating the decision of the Supreme Court.
In our country, the Constitution was reprinted following the judgment in the Eight Amendment Case by removing the offending Article 100 and replacing it with the original provision; this was a wrong decision that has now developed into a wrong precedence.
Amending the Constitution: The Constitution (Fifth Amendment) Act, 1979 had purported to ratify, confirm and validate all proclamations, regulations, orders and all actions taken under those martial law instruments. The High Court Division gave seven main reasons for finding those ultra vires. First, all martial law proclamation, regulation and orders during that time were illegal and void. Therefore, there was nothing for Parliament to ratify, confirm or validate. Secondly, since all martial law instruments constituted offences, ratification by Parliament was against common right and reason. Thirdly, the Constitution was made subordinate and subservient to the martial law instruments. Fourthly, the martial law instruments destroyed the basic feature of the constitution. Fifthly, ratification, confirmation and validation do not come within the ambit of "amendment" in Article 142 of the Constitution. Sixthly, there was no long title in the bill as required which makes it void (one of the primary conditions) and seventhly, the amendment was made for a collateral purpose which constituted fraud upon the people. All these grounds being in general self-explanatory, a little may be said about the doctrine of basic structure.
Doctrine of basic structure: The doctrine of basic structure or feature of the Constitution originated in India and was accepted by the Supreme Court of India in Kesavananda Bharti Sripadgalvaru Vs State of Kerala, which broadly states that the Constitution cannot be amended so that its basic structure and framework is changed. The 42nd constitutional amendment in India was brought by Parliament, inter alia, to supersede the Court's decision by giving Parliament vast and undefined power to amend the Constitution. The Indian Supreme Court also declared this unconstitutional stating that Parliament could not use its limited power of amendment to expand it into an absolute power.
It is interesting to note that neither our Constitution nor the Constitution of India or Pakistan says explicitly what the basic features are. An outline can be made from the preambles, fundamental principles of state policy or from the general framework of a Constitution. Even while expressing their views in this matter, the three Justices of the Indian Supreme Court expressed different opinions on what they considered basic ingredients of the Indian Constitution; they have given three separate lists with some elements in common. Although secularism was found to be a basic feature of the Indian Constitution, the word 'secularism' was not in the original preamble and did not find its way into the Indian Constitution until 1976.
This doctrine was adopted by our Supreme Court in the case of Anowar Hossain Chowdhury and others Vs Bangladesh, commonly known as the Eighth Amendment Case. The Court recognised some basic features of the Constitution like supremacy of the Constitution, Independence of the Judiciary, Democracy, Republican government, Unitary State, Separation of Powers and Rule of law. The Pakistan Supreme Court has also accepted this doctrine through various judgments and has found certain features of the Constitution of Pakistan i.e. Parliamentary System, Federalism, Islamic Provisions, Fundamental Rights and Independence of the Judiciary to be the basic features. The issue is still being hotly debated in the Constitution 18th amendment case, now pending before the Supreme Court of Pakistan after being accepted. The Supreme Court has ordered that Article 175-A has been amended through the epic 18th Amendment be sent back to the Parliament for review as it harmed the independence of the judiciary, such referral itself being constitutionally doubtful.
Rejecting this doctrine, the Federal Court of Malaysia held that had the framers of the Constitution intended such limitation, they would have expressly provided for that. Singapore also denied the application of this doctrine.
The basic structure doctrine stipulates that even a valid Parliament with a valid amendment bill cannot change the Constitution to alter or damage its basic features. Our Supreme Court observed that Parliament had attempted to validate various martial law instruments which themselves were illegal and so Parliament cannot legalise something which is illegal by bringing an amendment. Even if attempt is made by Parliament to make absolutely legal changes to the Constitution, as per the doctrine those changes also may be held to be invalid by the Supreme Court if the Constitution's basic framework is altered. The Supreme Court took the original 1972 Constitution as the basis for applying the doctrine.
Parliament's power of amendment: There is no doubt that the power to amend the Constitution is with the Parliament alone and the Court acknowledged that in the Fifth Amendment judgment. Some Articles can only be amended by going through referendum (changes in the Preamble, Articles 8, 48, 56 and 142). Article 142(1) (a) gives express power to Parliament to amend by way of addition, alteration, substitution or repeal of any provision of the Constitution. Parliament itself cannot change Article 142 without referendum after getting approval of two-thirds of the members. The mode of passing an amending bill is quite different from passing a general bill under Article 80. This difficulty in enacting an amendment bill is sometimes called procedural entrenchment, devised to make amendment to the Constitution more difficult than general Acts of Parliament, which require only simple majority to enact.
It means that the people have not delegated their power of amending the amendment provision of the Constitution to Parliament, but retained it through referendum. Logically, if there is any curtailment of such power it can only be made through referendum, nothing less will suffice. Other than this, there is no other limitation imposed on the legislature's power to amend the Constitution by the Constitution itself.
More importantly, Article 26(3) exempts amendments made under Article 142 from the restrictions imposed by Part III. The most entrenched provisions in our Constitution are the fundamental rights bestowed under Part III, which severely limits all laws and government actions. Where even those limitations are expressly removed in case of amendments, it is difficult to comprehend how any other implicit limitation may be inferred.
Limitation on the amending power of Parliament is quite expressly and precisely defined in Article 142 and reliance of the Court on the doctrine of basic structure, which itself is not expressly stated therein, to overrule an amending Act, does not appear to derive any support from the language of Article 142.
Conclusion: The Constitution is the supreme law of the Republic because it is the solemn expression of the will of the people and all powers in the Republic belong to the people, and their exercise on behalf of the people shall be effected only under, and by the authority of, this Constitution. The will of the people being expressed only by Parliament, its power can only be curtailed by express provisions of the Constitution (e.g. Parliament cannot amend some provisions of the Constitution without going through referendum).
While interpreting and applying the intention of the legislature, the Court cannot hold that the legislature had intended to circumscribe its own powers unless there is clear, unambiguous and express provision in the Constitution. Quashing or striking down an amending Act of Parliament is the highest form of judicial control over the legislature and the idea that the framers of our Constitution left such power to be inferred from the overall structure of the Constitution seems a little far-fetched. The framers certainly did not lack in expression if they so desired.
Some observers have expressed their reservations about the judgment and expressed the view that the Supreme Court had chosen and picked some provisions of the Fifth Amendment for approval and had not condoned the others. For example, the Supreme Court condoned the provision in the Fifth Amendment that had nullified the Fourth Amendment because the Fourth Amendment itself drastically altered the original Constitution. Similarly, changes made to Article 95 in the Fifth Amendment were condoned because that change was in conformity with the original 1972 constitution.
It will take years before the full impact of the decision in the Fifth Amendment Case can be fully realised. At present only a few observations can be made:
i. It has now become impossible to make any sweeping change to the Constitution (which may be necessary); it has become too rigid. The Constitution reform committee might find it hard to suggest broad changes.
ii. The Court has tried to preserve the character and spirit of the original Constitution of 1972. This means that experience of past thirty-eight years and changes in the political landscape will not find its expression in the Constitution.
iii. Parliament cannot ratify or validate that which is illegal in the first place. Any Act purporting to legalise an otherwise illegal action would not stand the Court's test (i.e. it will be difficult to reconcile Parliament's power to provide indemnity under Article 46 with the general principles laid down by the Court in the judgment).
iv. A conflict may occur between the decision of a referendum and decision of the Court. To put the matter in perspective, say Parliament wishes to bring changes to the Preamble or any provisions of Articles 8, 48, 56 or 142. A referendum is required for that but amendment would be carried out by way of passing an Act. If the changes are drastic in nature, the Supreme Court may find that Act to be in violation of the basic structure of the Constitution even though a referendum has approved it.
v. A subsequent Parliament may attempt to overrule the decision of the Court in the Fifth Amendment judgment. Parliament is authorised to do so by legislation or Constitution amendments.
vi. Martial law has become totally unjustifiable. If there is ever an unfortunate time in the future when martial law is proclaimed, the Constitution is most likely to be abrogated.
In Bangladesh, among the three pillars of the State, undoubtedly Parliament has become the weakest, largely because it had acted as rubber stamp for the people in power -- either military rulers or elected governments. Parliament, as understood in this country, is not the Parliament understood by the civilised world. As long as it remains in its present sorrowful state, nothing good can be expected from what we think in our country as Parliamentary Democracy. As Edward Gibbon had rightly said: "The principles of a free Constitution are irrevocably lost, when the legislative power is nominated by the executive".
The writer is a Barrister-at-Law and advocate, Supreme Court of Bangladesh. He can be reached at e-mail: adnan.karim@templecourt.co.uk
It should be understood that through the judgment the Supreme Court did not change or amend the Constitution but had "held" the Constitution (Fifth Amendment) Act, 1979 to be illegal and void. Therefore, it is submitted that the Constitution cannot be merely reprinted without going through the amendment procedure in Parliament. Following the decision, Parliament could have followed the amending procedure to comply with the Court's judgment. Alternatively, if nothing was done by Parliament or if it did not possess the requisite majority for amendment, a footnote could have been inserted in the Constitution stating the Court's decision without removing the delinquent provisions from the Constitution.
In India, the Forty-Second Amendment to the Constitution was found to be unconstitutional by the Supreme Court of India. However, it was not removed from the Constitution but remained there with a footnote stating the decision of the Supreme Court.
In our country, the Constitution was reprinted following the judgment in the Eight Amendment Case by removing the offending Article 100 and replacing it with the original provision; this was a wrong decision that has now developed into a wrong precedence.
Amending the Constitution: The Constitution (Fifth Amendment) Act, 1979 had purported to ratify, confirm and validate all proclamations, regulations, orders and all actions taken under those martial law instruments. The High Court Division gave seven main reasons for finding those ultra vires. First, all martial law proclamation, regulation and orders during that time were illegal and void. Therefore, there was nothing for Parliament to ratify, confirm or validate. Secondly, since all martial law instruments constituted offences, ratification by Parliament was against common right and reason. Thirdly, the Constitution was made subordinate and subservient to the martial law instruments. Fourthly, the martial law instruments destroyed the basic feature of the constitution. Fifthly, ratification, confirmation and validation do not come within the ambit of "amendment" in Article 142 of the Constitution. Sixthly, there was no long title in the bill as required which makes it void (one of the primary conditions) and seventhly, the amendment was made for a collateral purpose which constituted fraud upon the people. All these grounds being in general self-explanatory, a little may be said about the doctrine of basic structure.
Doctrine of basic structure: The doctrine of basic structure or feature of the Constitution originated in India and was accepted by the Supreme Court of India in Kesavananda Bharti Sripadgalvaru Vs State of Kerala, which broadly states that the Constitution cannot be amended so that its basic structure and framework is changed. The 42nd constitutional amendment in India was brought by Parliament, inter alia, to supersede the Court's decision by giving Parliament vast and undefined power to amend the Constitution. The Indian Supreme Court also declared this unconstitutional stating that Parliament could not use its limited power of amendment to expand it into an absolute power.
It is interesting to note that neither our Constitution nor the Constitution of India or Pakistan says explicitly what the basic features are. An outline can be made from the preambles, fundamental principles of state policy or from the general framework of a Constitution. Even while expressing their views in this matter, the three Justices of the Indian Supreme Court expressed different opinions on what they considered basic ingredients of the Indian Constitution; they have given three separate lists with some elements in common. Although secularism was found to be a basic feature of the Indian Constitution, the word 'secularism' was not in the original preamble and did not find its way into the Indian Constitution until 1976.
This doctrine was adopted by our Supreme Court in the case of Anowar Hossain Chowdhury and others Vs Bangladesh, commonly known as the Eighth Amendment Case. The Court recognised some basic features of the Constitution like supremacy of the Constitution, Independence of the Judiciary, Democracy, Republican government, Unitary State, Separation of Powers and Rule of law. The Pakistan Supreme Court has also accepted this doctrine through various judgments and has found certain features of the Constitution of Pakistan i.e. Parliamentary System, Federalism, Islamic Provisions, Fundamental Rights and Independence of the Judiciary to be the basic features. The issue is still being hotly debated in the Constitution 18th amendment case, now pending before the Supreme Court of Pakistan after being accepted. The Supreme Court has ordered that Article 175-A has been amended through the epic 18th Amendment be sent back to the Parliament for review as it harmed the independence of the judiciary, such referral itself being constitutionally doubtful.
Rejecting this doctrine, the Federal Court of Malaysia held that had the framers of the Constitution intended such limitation, they would have expressly provided for that. Singapore also denied the application of this doctrine.
The basic structure doctrine stipulates that even a valid Parliament with a valid amendment bill cannot change the Constitution to alter or damage its basic features. Our Supreme Court observed that Parliament had attempted to validate various martial law instruments which themselves were illegal and so Parliament cannot legalise something which is illegal by bringing an amendment. Even if attempt is made by Parliament to make absolutely legal changes to the Constitution, as per the doctrine those changes also may be held to be invalid by the Supreme Court if the Constitution's basic framework is altered. The Supreme Court took the original 1972 Constitution as the basis for applying the doctrine.
Parliament's power of amendment: There is no doubt that the power to amend the Constitution is with the Parliament alone and the Court acknowledged that in the Fifth Amendment judgment. Some Articles can only be amended by going through referendum (changes in the Preamble, Articles 8, 48, 56 and 142). Article 142(1) (a) gives express power to Parliament to amend by way of addition, alteration, substitution or repeal of any provision of the Constitution. Parliament itself cannot change Article 142 without referendum after getting approval of two-thirds of the members. The mode of passing an amending bill is quite different from passing a general bill under Article 80. This difficulty in enacting an amendment bill is sometimes called procedural entrenchment, devised to make amendment to the Constitution more difficult than general Acts of Parliament, which require only simple majority to enact.
It means that the people have not delegated their power of amending the amendment provision of the Constitution to Parliament, but retained it through referendum. Logically, if there is any curtailment of such power it can only be made through referendum, nothing less will suffice. Other than this, there is no other limitation imposed on the legislature's power to amend the Constitution by the Constitution itself.
More importantly, Article 26(3) exempts amendments made under Article 142 from the restrictions imposed by Part III. The most entrenched provisions in our Constitution are the fundamental rights bestowed under Part III, which severely limits all laws and government actions. Where even those limitations are expressly removed in case of amendments, it is difficult to comprehend how any other implicit limitation may be inferred.
Limitation on the amending power of Parliament is quite expressly and precisely defined in Article 142 and reliance of the Court on the doctrine of basic structure, which itself is not expressly stated therein, to overrule an amending Act, does not appear to derive any support from the language of Article 142.
Conclusion: The Constitution is the supreme law of the Republic because it is the solemn expression of the will of the people and all powers in the Republic belong to the people, and their exercise on behalf of the people shall be effected only under, and by the authority of, this Constitution. The will of the people being expressed only by Parliament, its power can only be curtailed by express provisions of the Constitution (e.g. Parliament cannot amend some provisions of the Constitution without going through referendum).
While interpreting and applying the intention of the legislature, the Court cannot hold that the legislature had intended to circumscribe its own powers unless there is clear, unambiguous and express provision in the Constitution. Quashing or striking down an amending Act of Parliament is the highest form of judicial control over the legislature and the idea that the framers of our Constitution left such power to be inferred from the overall structure of the Constitution seems a little far-fetched. The framers certainly did not lack in expression if they so desired.
Some observers have expressed their reservations about the judgment and expressed the view that the Supreme Court had chosen and picked some provisions of the Fifth Amendment for approval and had not condoned the others. For example, the Supreme Court condoned the provision in the Fifth Amendment that had nullified the Fourth Amendment because the Fourth Amendment itself drastically altered the original Constitution. Similarly, changes made to Article 95 in the Fifth Amendment were condoned because that change was in conformity with the original 1972 constitution.
It will take years before the full impact of the decision in the Fifth Amendment Case can be fully realised. At present only a few observations can be made:
i. It has now become impossible to make any sweeping change to the Constitution (which may be necessary); it has become too rigid. The Constitution reform committee might find it hard to suggest broad changes.
ii. The Court has tried to preserve the character and spirit of the original Constitution of 1972. This means that experience of past thirty-eight years and changes in the political landscape will not find its expression in the Constitution.
iii. Parliament cannot ratify or validate that which is illegal in the first place. Any Act purporting to legalise an otherwise illegal action would not stand the Court's test (i.e. it will be difficult to reconcile Parliament's power to provide indemnity under Article 46 with the general principles laid down by the Court in the judgment).
iv. A conflict may occur between the decision of a referendum and decision of the Court. To put the matter in perspective, say Parliament wishes to bring changes to the Preamble or any provisions of Articles 8, 48, 56 or 142. A referendum is required for that but amendment would be carried out by way of passing an Act. If the changes are drastic in nature, the Supreme Court may find that Act to be in violation of the basic structure of the Constitution even though a referendum has approved it.
v. A subsequent Parliament may attempt to overrule the decision of the Court in the Fifth Amendment judgment. Parliament is authorised to do so by legislation or Constitution amendments.
vi. Martial law has become totally unjustifiable. If there is ever an unfortunate time in the future when martial law is proclaimed, the Constitution is most likely to be abrogated.
In Bangladesh, among the three pillars of the State, undoubtedly Parliament has become the weakest, largely because it had acted as rubber stamp for the people in power -- either military rulers or elected governments. Parliament, as understood in this country, is not the Parliament understood by the civilised world. As long as it remains in its present sorrowful state, nothing good can be expected from what we think in our country as Parliamentary Democracy. As Edward Gibbon had rightly said: "The principles of a free Constitution are irrevocably lost, when the legislative power is nominated by the executive".
The writer is a Barrister-at-Law and advocate, Supreme Court of Bangladesh. He can be reached at e-mail: adnan.karim@templecourt.co.uk