Lecture on “Constitutional Amendment and Dismemberment in South Asia” held at the University of Dhaka

Distinguished lecture on "Constitutional Amendment and Dismemberment in South Asia" by Professor Richard Albert was held on 30 November, 2022 at the University of Dhaka on the occasion of the 50th Anniversary of the Constitution of Bangladesh. Richard Albert is the William Stamps Farish Professor in Law, Professor of Government, and Director of Constitutional Studies at the University of Texas at Austin. He holds law and political science degrees from Yale University, the University of Oxford and Harvard University.

In his keynote speech, Professor Richard Albert discussed constitutional amendments and his new idea of "constitutional dismemberment" which refers to self-conscious efforts to repudiate the essential characteristics of the constitution and its foundations through amendments made by political actors. According to his research, political actors have used the procedure of amendment to transform the making of the constitution unrecognisable. The lecture covered four aspects- (i) "What is constitutional dismemberment?" (ii) "What is the difference between amendment and dismemberment?" (iii) "What is the process of dismemberment?" and finally, (iv) "Why does it matter for democracy and constitutionalism?"

He started with the Kenyan Constitutional Amendment Bill (BBI) judgement in which the Supreme Court of Kenya found that the amendments made by the BBI constitutional committee headed by the President to be unconstitutional on the ground that the amendments undermined the basic characteristics of the Constitution of Kenya. He also gave examples of the Brazilian public spending cap amendments which was held to be unconstitutional because it undermined the fundamental commitments to social rights guaranteed under their constitution, the Albanian package of amendments which transformed the totality of the constitution, the Turkish amendments which transformed the parliamentary system to a presidential system of government making the powers of the president unlimited. According to Professor Albert, all these amendments are actually "constitutional dismemberments" rather than "amendments" as they dismantle the very basic structure of the constitution.

He also argued that the power of constitutional amendment is limited. A proper amendment has four elements- subject, authority, purpose and scope. The effect of amendment must be such that it is coherent with the constitution and should only be made regarding technical flaws in the design of the constitution and to keep the constitution coherent, consistent with the need of the hour. Introduction of competing values are therefore dismemberments, not amendments. However, dismemberment is not necessarily a bad thing, it is a neutral concept according to Professor Albert. Good examples of dismemberment include the US Constitutional transformation from slavocracy to equality and bad examples include the Hungarian Constitutional transformation from "liberal democracy" to "illiberalism".

He then moved on to examples of "constitutional dismemberment through judicial interpretation" in the South Asia region including India and Bangladesh. In India, the famous Kesavananda Bharati case established the basic structure doctrine by limiting plenary power of the political actors which is a solid example of Constitutional dismemberment as it transformed the concept 'separation of power' by alleviating the power of the Supreme Court to review and override amendments made by the parliament. Professor Albert praised the 15th Amendment of the constitution of Bangladesh as a good example of constitutional dismemberment as it strengthened democratic values.

The point he tried to raise throughout his lecture is that the political actors are using this limited power of amendment to serve their own political interests and these are "bad dismemberments" rather than amendments. Therefore, a fixed design in the rules of constitutional change is needed and a right balance must be struck between rigidity and change. He finally suggested a fixed procedure for amendment and dismemberment of the constitution posing a vital question "Why not make a constitution before actually making a constitution?"

The whole session was conducted by Professor Dr. Muhammad Ekramul Haque, Professor of Constitutional Law and Comparative Constitutional Law at the University of Dhaka. Honourable Acting Dean of the Faculty of Law, Professor Dr. Shima Zaman and Chairman of the Department of Law, University of Dhaka Professor Dr. Nazrul Islam along with esteemed faculties were also present in the event. A vibrant question answer session was also conducted with the participants.

Event report by Julian Rafah, student of law, University of Dhaka