The constitution (Eighth Amendment ) Act, 1988, was passed amending article 100 of the constitution by setting up permanent Benches of the High Court Division outside the capital city Dhaka and the Supreme Court gripped with that constitutional issue which were challenged by two writ petitions on the ground that High Court division of the Supreme Court with judicial power over the republic is a basic structure of the constitution and that cannot be altered or damaged and therefore the impugned amendment is void. A division Bench of the High Court Division summarily dismissed the said two writ petitions. Leave was granted by the Appellate Division. This appeal along with other two appeals of Anwar Hussain Chowdhury v Bangladesh is popularly known as the constitution (Eighth Amendment) case. 41 DLR (AD) 165.
The power of amendment of the Constitution of the Republic of Bangladesh under Article 142 is not an unlimited power and that power conflicts with the concept of supremacy of the constitution provided by Article 7 of the Constitution. Article 7 of the Constitution has put an implied limitation on the power of amendment and therefore Article 7 is basic and unalterable. The counter argument was independence of judiciary and separation of powers are basic features of the constitution but the impugned amendment has not affected either of the two. And the power of amendment under article 142 is a constituent power not any ordinary legislative power.
B.H. Chowdhury, J. has listed 21 ‘unique features’ which are basic features of the constitution and they are not amendable. He finally held the impugned amendment violated the Articles 102 and 44 of the constitution.
Shabuddin Ahmed, J. further held that ‘constituent power’ in the sense of power to make a Constitution, belongs to the people alone and to vest the power to the parliament is a ‘derivative’ one and that derivative constituent power will not automatically make the amendment immune from challenge. And he further held that the impugned amendment has broken the ‘oneness’ of the High Court Division which is irreconcilable conflict with other Articles of the constitution relating to High Court Division. He listed sovereignty belongs to people, supremacy of the constitution , democracy , unitary state, separation of powers , independence of the Judiciary are the structural pillars of the constitution and they are beyond any alteration or change by amendatory process. And the impugned amendment rendering the High Court Division virtually unworkable in its original form and shape.
M.H. Rahman, J.
Judgment of A.T. M. Afzal J. rejected the doctrine of basic structures on two grounds that it is unthinkable the makers of the constitution did not leave any option to the future generation but decided on all matters for all people. And secondly the makers of the constitution envisaged the so-called ‘basic features ’ to be ‘permanent features’ of the constitution. He stressed on saying that sub Article ( 1A ) in article 142 provided the procedure of referendum which is more difficult to amend some provisions of the constitution which manifests that no other provision of the constitution is not basic that a referendum is required to be incorporated in the constitution. He feared that majority judgment in the eighth amendment case may be a ‘ roadblock’ for the future.
Despite that A.T.M. Afzal , J by restricting the basic features holds that the word “amendment” has a built –in limitation in that it does not authorize the abrogation or destruction of the constitution or any of its three structural pillars- executive, legislative and judiciary which will render the constitution unworkable. He also rejects the doctrine of implied limitation to the power of amendment and pursues to say that the limitation in Article 142 relates ‘only to procedure for amendment and not substantive’ in the sense that no article is beyond the ambit of amendment.
Finally A.T.M. Afzal holds that the impugned amendment has not destroyed the High Court Division and the impugned amendment and notification not to be ultra vires on any grounds alleged.
See in details 41 DLR (AD) 165. 1989 BLD ( SPL) 1