Assignment On

Topic: The Doctrine of basic structure of Bangladesh Constitution.

Department: Department of Law.

Submitted By:

Name: A Rahman

Submission Date: 16-09-2020

Contents

Sl. No. Name of topic Page no.

1 Introduction 3
2 The basic structure doctrine of the Constitution 4
3 Bangladesh Constitution and Basic Structure Doctrine 4
4 The origin of the concept of "Basic Structures" of the constitution 5
5 Types of Basic Structure 5
6 Basic Structure principle in general sense 5-6
7 Basic Structure principle in real sense 6
8 Delimitation of Basic Structures 6-9
9 The Basic structure of the constitution of Bangladesh 9-11

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 10 Recommendation 11-12
11 13
Conclusion
12 Bibliography 14

Introduction:
A constitution is the basic fundamental law of a State / Country. It lays down

the objectives of the State which it has to achieve & describes the rights and

duties of the citizens. Government cannot run the state according to their

whim and caprice. There has to be certain rules and principles on the basis

and under the authority of which the government can run the state. This set of

principles is called the Constitution. At first we have to know that, what the

basic structure of the constitution is. This doctrine is not a settled principle of

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constitutional law. It is a growing principle of Constitutional Jurisprudence.

The basic structure doctrine is the judge made doctrine whereby certain

features of a constitution are beyond the limit of the powers of amendment of

a parliament. This doctrine also applies only to the constitutionality of

amendments and not to the ordinary Acts of the parliament which must

confirm to the entirety of the constitution. Now I will discuss the doctrine of

basic structure of the Constitution of Bangladesh.

The basic structure doctrine of the Constitution

A Constitution is called the governing wheel of the state. The basic structure

doctrine is a judicial principle, that the Constitution of a country has certain

basic features that cannot be altered or destroyed through amendments by the

Parliament of state.

Bangladesh Constitution and Basic Structure Doctrine

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The Constitution of Bangladesh is the highest ruling of Bangladesh. It
represents Bangladesh as a democratic republic nation where all the power is
in the hands of Bangladeshi people and characterizes basic political
principles of the state and stands for the fundamental rights of citizens. It was
approved by the Assembly of Bangladesh on November 4, 1972; it was
exercised from December 16, 1972. The constitution stands as the most
powerful evidence to state Bangladesh as a unitary, independent and
Republic, founded on a struggle for national liberation, and that is how we
achieve the People's Republic of Bangladesh. It lays a strong foundation of
nationalism, secularity, democracy and socialism as the essential ethics that
stands for the Republic and declares the quest of a society that gives its
citizens- the rule of law, fundamental civil rights and independence as well as
fairness and evenhandedness, political, economic and social.

The origin of the concept of "Basic Structures" of the constitution:

The concept of the basic structure of the constitution can be found in the sub-
continent in the case of Pakistan Supreme Court in Fazlil quder choedhury
VS Abdul Haque. It was held that Franchise and form of government are
fundamental features of a constitution. The power conferred upon the
presidency by the constitution of Pakistan to remove difficulties does not
extend to making an allegation in a fundamental feature of the constitution.

Types of Basic Structure:

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On the basis of treatment given by the Judges over "Basic Structure"
principle in Bangladesh it would be appropriate to use this doctrine in two
senses.

1) Basic Structure principle in general sense and  

2) Basic Structure principle in real sense.

Basic Structure principle in general sense or Numerable sense:

Most of the judges so far have treated this doctrine from enumerative point of
view. Some Judges says that there are 21 basic structures, some are says for 6
and some are says for 3. No unanimity can be found among the judges as to
the substance of this doctrine. If this doctrine is meant from this general or
numerable sense then there are some dangers: Firstly, The judiciary may be
applying any provision of the basic structure principle, reduce or narrow
down the justifiable scope of amending power of the parliament. The
absolute judicial dictation, the whim of judiciary may take the place of
constitutional limit in respect of amending power of the constitution.
Secondly, the judiciary may, by applying any provision under the basic
feature principle, reduce or narrow down the justifiable scope of amending
power of the parliament. Thirdly, in some cases the judgment of the court
will be reduced into nullity, reducing the dignity and institutional value of the
judiciary. It has been seen in the judgment of the case of Badrul Haider
Chowdhury Vs Bangladesh in the eighth amendment case.

Basic Structure principle in real or substantive sense:

In real or substantive sense, the doctrine of the basic structure means those
fundamental principles and objectives of the constitution which are its
structural pillars. On which the whole edifice of the constitution is erected. If
these principles are taken away or destroyed, the constitution will lose its
original and inherent identity and character. If it is found that a constitution
amendment is made by parliament and it has affected or likely to destroy any

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of the basic features of the constitution, then the amendment should be
declared unconstitutional and void.
Delimitation of Basic Structures:

Accepting the Judicial Review of parliamentary amendment does not relieve

us of another important attack on Anwar Hossain. It is the issue of there
being innumerable and controversial basic structures. In Anwar Hossain
Shahabuddin Ahmed J gave a list of eight basic features of the Constitution
Mohammad Habibur Rahman J added another one to the list Badrul Haider
Chowdhury J found twenty one unique features out which some were basic
which he did not identify .In India more than half of the provisions of the
Indian Constitution are declared to be basic and the list is still open .This
never ending and ever expanding list of basic structures is creating nothing
but confusion and inconsistent application. Two instances below should
suffice to establish the fact. In the aftermath of the Babri Mosque incident the
Indian Supreme Court in S.R. Bommai v. Union of India (1994) 3 SCC 1
justified the dismissal of the BJP led governments in Rajasthan, Madhya
Pradesh and Himachal Pradesh on the ground of failure to uphold the
‘secular’ character, which was considered to be a basic feature, of the Indian
Constitution and President’s Rule was imposed there. Now, strange result
may follow if someone in India approaches the Court for dismissal of a
particular government on account of its capitalist policy being opposed to
‘socialism’, another basic feature of the Indian Constitution.

In the cases of Zafar Ali Shah v. General Parvez Musharraf PLD 2000 SC
869 and Wasim Sajjad v. Pakistan PLD 2001 SC 233 the Pakistan Supreme

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Court conceded the Martial Law Administrator’s power to amend the
constitution as if democratic governance was not a basic structure of the
Pakistani Constitution. At the same time it held that the Martial Law
Administrator couldn’t destroy the basic structures of the Constitution. How
curious an application of basic structure! Does there remain anything basic
while a usurper makes the constitution subservient to his will?
So it is necessary to ensure certainty in list of basic structure so that
parliament will not be in a fix regarding the scope of amending power
Presently Article 142 (1A) provides a short list of issues amendment of which
requires referendum in addition to a two third majority in the floor. To
delimit the infinity of basic structures, Article 142 (1A) of the Constitution
may be amended, if we think the present list to be too short, to include some
other features like constitutional supremacy (art.7), elected local government
(art.59), no taxation without parliamentary approval (art.83), judicial review
(art.102), judicial independence (Article 22), independence of the Election
Commission (art.119) in list. Doing this will require a referendum. This if
done in the form of renovation, will serve two purposes in the same journey.
It may solve the validity crisis of Article 142 (1A) as well as confirm that
what is basic for a political entity (i.e., the state) should be determined by the
political opinion of the people not by the judges. The people will certify that
these are the basic structures of the constitution amendment of which would
require the Parliament to seek popular approval. Importantly, this codification
shall not foreclose the list of basics for all the time to come. If any new
principle emerges in future which might then appear to be ‘basic’ the
Legislature along with the Populace shall have the option to add that in the

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Constitutional list through referendum. This will mitigate the fear of changes
in the power equation between the parliament and the judiciary in favour of
the latter .In regular Parliamentary amendments by two third majority in the
House, the Supreme Court shall, if challenged, see whether the particular
amendment conforms to the basics enumerated in Article 142 (1A) or not.

The power of amendment does not extend to alteration or destruction of the

basic structure or features of the Constitution, the question arises whether the
amendments made in the Constitution are valid. The first three amendments
do not appear to have altered the basic structure of the Constitution. But the
Fourth Amendment of the Constitution clearly altered the basic structure of
the Constitution and in one case the amendment was found to have so altered
the basic structure, but the court did not declare the amendment invalid as, in
the opinion of the court, the constitutional process in the country had
followed a different course in view of the change of the political system, the
people have not resisted it and it has been recognized by the judicial
authorities.

The Basic structure of the constitution of Bangladesh:

The constitution shall be the supreme law of the land for all times. Nothing
can be done which is brings about a violation of the constitution and its basic
features. That means the constitution of Bangladesh beings the embodiment
of the WILL of the republic of Bangladesh which mentioned in Article 7 of
the Bangladesh constitution. In the case of A n w a r H o s s a i n V s .
B a n g l a d e s h , This case is also known as the eighth amendment case. Here
Article 7 was prevailed. This is the first case whereby the Supreme Court of
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Bangladesh as striking down an amendment to the constitution made by the
parliament. By two writ petition the amended article 100 and the notification
of the chief justice were challenged. A division bench of the High Court
Division (HCD) dismissed the petition summarily. Leave was granted by the
Appellate Division (AD) by a majority of 3 to 1 striking down the 8th
amendment. The principle argument of the judgment is that-the constitution
stands on certain fundamental principles which are the structural pillars.
These basic features are:
1) Supremacy of the constitution which states in article 7 of the constitution.

2) Democracy which states in the preamble.

3) Republican government which states in the article 1 of the constitution.

4) Independence of judiciary which states in article 22 of the constitution.

5) Unitary state which is mentioned in article 9 of the constitution.

6) Separation of powers which is mentioned in article 22 of the constitution.

7) Fundamental rights which is mentioned in from article 26 to 47A of the

constitution.

(Therefore Sovereignty belongs to people, supremacy of the constitution,

Democracy, Republican Government, Unitary state, Independence of
judiciary (MAZDER HOSSAIN CASE-1995) are basic stricture)

ln Kesavanannda'.s case Sikri C.J. says that the basic structure of the
Constitution consists of the following features-

i)Supremacy of the Constitution.

ii) Republican and democratic form of government'

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iii) Secular characteristic of the Constitution'

iv) Separation of power between the executive, legislative and Judiciary.

V) Federal Character of the Constitution'

These structural pillars of the constitution stand beyond any change by

amendatory process. If these principles are curtailed more than one
permanent seat of the Supreme Court by exercising the amending power, then
it destroying the unitary character of the judiciary. The amended article 100 is
Ultra vires because it has destroyed the essential limb of the judiciary by
setting up rival courts to the HCD in the name of permanent Benches
conferring full jurisdiction, power and function of the HCD. The amended
article 100 is inconsistent with article 44, 94, 101, and 102.It also reduced
article108 to article 111 of the Bangladesh Constitution. It directly violated
article 114, this amended is illegal because there is no provision of transfer
which is essential requisite for dispensation of justice.
Recommendation:

Above mention discussion are the amendment of constitution and basic

structure doctrine of the constitution. In my view that above discussion the
amendment procedure of the constitution is not easy. However, amendment
of constitution is very much necessary because the society change day by
day. The Constitution is not set in stone. It is a living document. It must serve
its purpose. It has to march with the needs of the time. There are times when
it is necessary to amend the Constitution. I give some recommendation such
as follows:

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i) If the amendment of the constitution is necessary must be reflect the will of
the people of the state. Because amendments to Constitution sometimes have
taken place to suit the interests of a particular person or to meet the interests
of the party in power.
ii) The referendum is essential in the case of amendment of the important
article of the Bangladesh constitution. But basic feature of the constitution
cannot be amended or destroyed.
iii) The amendment of the constitution cannot have the effect of destroying
abrogating of the basic structure framework of the constitution. That means
the basic structure or the essential feature of the constitution cannot
destroyed.
iv) Every provision of the constitution can be amended provided in the result
the foundation and the structure of the constitution remains the same. In the
other words the basic structure of the constitution cannot be amended.
v) Expressly mention which is the basic feature of the constitution .and which
provision cannot amend. Because sometimes its creates some problems
different judges gives different opinion, Likewise in 8th Amendment case of
Bangladesh the judges could not come into a unanimity as to what constitute’
basic feature' of the constitution. According to B' H. chowdhury. J', 21,
features are basic feature of our constitution. Justice Sahabuddin Ahmed has
mentioned six features as basic. In India more than half of the provisions of
the Indian Constitution are declared to be basic and the list is still open. This
never ending and ever expanding list of basic structures is creating nothing
but confusion and inconsistent application.

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vi) If the amendment of the constitution is necessary must be maintain all the
procedure which is mention in article 142 of the People’s Republic of the
Bangladesh constitution.
vii) If the constitution is amended to be followed such other procedure as the
constitution prescribes.
viii) Provision of amendment of constitution must be needed in any country
because the society changes day by day.

Conclusion:

I have no hostility in enacting a new Amendment by the present or upcoming

governments, but if and when this is complete, there must be occupied
debates and contribution by all the political parties, intelligentsia and
apprehensive citizens. Reading the doctrine of basic structure for this
research proposes various models by which the doctrine may be identified
and evaluated came up. The three molds used to examine the doctrine are
Basic Structure and the theory of Originals, Basic Structure acts as balancing
tool, and Basic Structure as a tool of growth. The tool is used to examine
some of the limitations of the basic structure doctrine in the background of
weak societies and proposes a deviating and progressive approach in judicial
appliances of constitutional main beliefs amending the Constitution is an on-
going process in any democratic country to meet the demands of changed
circumstances. Countries having a long tradition of democracy have gone for

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amendment of their Constitutions in greater national interests. But in
countries like Bangladesh, where democracy is yet to take root, amendments
to Constitutions sometimes have taken place to suit the interests of a
particular person or to meet the interests of the party in power."Basic
structure of the Constitution" cannot be altered or amended. The Constitution
is not an ordinary legislation. It is a basic structure how a country is
governed. It reflects history, ethos, and aspirations of people of a country.
There are certain basic principles on which a constitution is founded and
these principles must be preserved. I think these principles are the doctrine
of basic structure of the Constitution of a country.

Bibliography:

1) The Constitution of the People’s Republic of Bangladesh.

2) Constitutional Law of Bangladesh by M. Islam.
3) Md. Abdul Halim, constitution, constitutional law and politics.
4) Fazlil quder choedhury VS Abdul Haque.
5) Badrul Haider Chowdhury Vs Bangladesh.
6) Zafar Ali Shah v. General Parvez Musharraf PLD 2000 SC 869 and
Wasim Sajjad v. Pakistan PLD 2001 SC 233.
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7) Anawar Hossain Chowdhury v. Bangladesh, 1989. 41 DLR
8)  Kesavananda Bharati Sripadagalvaru and Ors. v. State of Kerala
and Anr. (1973) 4 SCC 225)
9) The daily News paper.
10) Internet, etc

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