Negotiating Article 142(1A) for the 'Basic Structure'
M. Jashim Ali Chowdhury
TO borrow words from Justice Mustafa Kamal, some provisions of the constitution are considered to be 'basic' while others may be termed as circumstantial. The constitutional lawyers and judges may discern some fundamental structural designs in a constitution as when an architect views a building. Call it basic structures or structural pillars or by whatever name they are there (Constitution: Trends and Issues, p 14). By now this fascinating doctrine of Basic Structure has become a vibrant tool of judicial activism to protect the constitutional edifice from ruination in hands of the invincible parliamentary super majority. The substance of the claim is that the structural pillars of the constitution cannot be dismantled by parliament in the name of amendment. It was planted strappingly in the judicial culture of Bangladesh by famous Anwar Hossain Chowdhury v. Bangladesh 1989 BLD (Spl) 1. A majority of 3:1 of the Appellate Division of the Supreme Court struck down the Constitution (8th) Amendment Act, 1988 establishing six permanent benches of the High Court Division outside Dhaka on the charge of destroying the unitary character of Republic, a basic structure of the Constitution as it was claimed.
Article 142(1A): The patent ills
Clause (1A) was inserted in Article 142 by the Second Proclamation (Fifteenth Amendment) Order, 1978 (Second Proclamation Order no IV of 1978). It provided that the renovated and express mandate of the people through Referendum shall be required along side the 2/3 majority in the House to amend some designated provisions of the Constitution. Looking at the list of provisions specially designated therein (Preamble, Articles 8, 48, 56, 58, 80 or 92A) it prima facie appears that General Zia couldn't have trust enough on the servile Parliament to be 'established' through the Second Parliamentary Election. To perpetuate the already settled omnipotent presidency along with the philosophical distortion in the Preamble, he needed something like clause (1A). Hence, Advocate Mahmudul Islam put a sharp question mark over the legality of this clause being an extra-constitutional insertion (Constitutional Law of Bangladesh, p 394). Then it was Honorable Justice ABM Khairul Huq who unveiled the secrets:
“Addition of clause (1A) was craftily made. In the one hand the President and the Chief Martial Law Administrator was not only merrily making all the amendments in the Constitution of the People's Republic of Bangladesh according to his own whims and caprices by his order…….... but at the same time, made provision in Article 142 itself in such a manner so that the amended provisions cannot be changed even by the two thirds majority members of the parliament short of a referendum. In short by executive order of one person, amendment of the Constitution can be made at any time and in any manner but even the two thirds majority of the representative of the people cannot further amend it. We are simply charmed by the sheer hierocracy of the whole process” (The 5th Amendment Case 14 BLT (Spl) p199).
Article 142(1A): The latent cure
In spite of the patent ills in Clause 1(A), looked upon from a different angle, it may reveal a latent cure. Just consider the 4th Amendment to the Constitution. Many of us, including me, firmly believe that it was a right but much belated step. Yet this 4th Amendment has blemished Bangabandhu's glorious patriotism and devotion towards the cause of his countrymen to a considerable extent, we may like it or not. It provided a ready tool in the hands of the anti-liberation force to propagate against the Patriot. It was a Parliament elected in a multi-party-democracy that attempted to introduce a one party system. Theoretically it is always a good question to ask. Had the people mandated the parliament to destroy the very system under which it took birth? In 1975 there was no parliamentary supremacy in Bangladesh. Given the situation it might have been the wisest on the part of Bangabandhu to seek a fresh mandate from the people on his new political standing before starting the second revolution. I'm sure the people of this country would never turn back on him.
Now come to Article 142(1A). By requiring Referendum in certain cases, didn't it subconsciously put a clog on a parliamentary super-majority acting in an unaccountable fashion? We should not forget that this is a country where the winners habitually tend to do everything they wish until they are de-elected in the next election!
Article 142(1A) healing the dilemmas of 'Basic Structure'
The Basic Structure carries with it some inborn fogginess and controversies. In Golak Nath v. State of Punjab AIR 1967 SC 1643 the Indian Supreme Court candidly conceived the idea that there is a distinction between plenary legislative power and constituent power of parliament. Parliament's plenary legislative power is subject to judicial review while the constituent power is not. Hence the Court may invalidate a law but not a constitutional amendment. This again has been sharply rejected in Kehsavananda Bharati v. State of Kerala (1973) in India and Anwar Hossain Chowdhury v. Bangladesh (1989) in Bangladesh. Now the Court, the guardian of the Constitution, is not ready to leave the constitutional edifice vulnerable at the hands of the Parliament.
But should it not mean that some principles would be so permanently fixed to allow the dead rule the world from the grave? Do the ideologies of one generation bind the later? Then where to accommodate the supremacy of the people? What to do in case the people overwhelmingly support an amendment violating the basic structure? So many people in Bangladesh still believe that decentralization of the Supreme Court in 1988 was a right step! Here the judiciary not only trumps over the 'general will of the people' expressed through an elected legislature, but also over the 'absolute will of the people' on a particular issue. Moreover the Judiciary gets a free hand in defining 'basic structure' making the concept a fluctuating one and hence bad. The Judiciary may come out with new 'basic structures' whenever convenient. It is indeed the case in India.
Article 142(1A) nicely answers those dilemmas. In one sense Article 142(1A) provides a sort of constitutional recognition to the judicial claim of 'basic structure'. By this the Constitution itself recognizes that there are something which are 'basic' (B.H Chowdhury J in Anwar Hossain Case, Para 256) and these need higher protection than the bulk so that Parliament may not manipulate them in its whim and caprices. In the other sense, it cures the iron fist immutability of 'basic structures' by saying that basic structures are particularly hard to be amended but not un-amendable. Now inter-generational adaptation is reconciled with the need for stability. Again, the basic structures are concretized by specification in the Constitution itself.
Article 142 (1A) be reconsidered not camouflaged
No doubt Article 142(1A) is an illegal inclusion in the Constitution by an illegal authority through an illegal exercise of power. After the Appellate Division ruling on the 5th Amendment case it is now almost at the vanishing point. The Government is bound to re-print the Constitution deleting this, if Appellate Division so directs. But whatever motive the then military 'President' had in his mind, the Clause as it stands now may serve a very useful purpose of safeguarding constitutional fabric from the fanaticism of a winner-takes-all politics. The government is planning to consult the Law Commission on 5th Amendment issue. The Commission may seriously consider recommending adapted re-insertion of the gist of Article 142(1A) de novo by the incumbent Parliament.
The writer is Senior Lecturer, Department of Law, Northern University Bangladesh (NUB), Dhaka.