Our “immutable” Constitution and the paradoxes of Article 7B

Bangladesh's Constitution has seen its "basic structures" altered by several amendments. Several of those amendments altered the Constitution so drastically that we tend to call them "constitutional dismemberments"– a term borrowed from Professor Richard Albert of the University of Texas at Austin. The Supreme Court of Bangladesh declared some, such as the Fifth and Seventh, constitutional amendments, unconstitutional. Some, such as the Fifteenth, were never formally challenged.

The Fifteenth Amendment of 2011 arguably tried to protect the Constitution's basic structures from amendment, destruction, or dismemberment. It introduced Article 7B, granting an "unamendable" status to some unspecified "basic structures" and a large number of specific constitutional provisions. These include the Preamble, Parts I, II, III, and Article 150 accommodating the Fourth to Seventh Schedules of the Constitution. While proponents see Article 7B as a shield against democratic erosion, critics view it as a paradoxical grip that freezes the Constitution in time, hindering future generations' capacity to bring changes.

Article 7B presents a complex challenge for Bangladesh's democracy. Bangladesh's aspiration for a democratic future necessitates a Constitution that can adapt to the needs of its evolving citizenry. While Article 7B's intent to safeguard our core constitutional principles is commendable, its rigid formulation undermines popular sovereignty and democratic evolution.

Some argue that Article 7B contradicts the core value of popular sovereignty (Article 7) by rendering certain provisions unalterable. It effectively militates against the people's right to self-determination, creating a constitution whose parts are considered unchallengeable. With the past dictating the present and future, some may call it a "Dead Men's Constitution." The architects of the Fifteenth Amendment, though alive now, are not eternal. Their vision, enshrined as unalterable law, raises a crucial question: Should the unalterable will of a bygone era dictate the aspirations of a living and evolving population?

Further, Article 7B undermines the core principle of a "living constitution" that should adapt alongside a nation's circumstances. Drafted in a specific historical context, a Constitution may no longer perfectly reflect the needs of a nation that has evolved over decades. However, Article 7B shackles future generations to a rulebook they may disagree with and lack legitimate means to change. This rigidity creates a breeding ground for frustration and potential unrest.

The "basic structure doctrine", championed by the Supreme Court, also aims to protect core democratic principles from erosion. This is, however, limited and the Supreme Court has the option to revise its definition from time to time. Article 7B recognises the doctrine but ironically exaggerates it by making even peripheral provisions, such as the status of Dhaka as our capital, unamendable. We already know that the judicially enumerated basic structure doctrine itself lacks a clear definition, potentially allowing the judges to interpret it subjectively. Therefore, elevating this judicial doctrine to the status of an unalterable constitutional principle through Article 7B risks perpetuating the very flaws of the doctrine itself.

Article 7B has a self-preservation paradox too. It declares certain provisions, including itself, unalterable. It raises serious questions about its validity. Was Article 7B or the Fifteenth Amendment as a whole, made by a Constitutional Assembly in the exercise of its original constituent power? Clearly not. Was it an act of a parliament exercising its derivative power of amendment? Perhaps yes. Since Article 7B was not part or basic structure of the original 1972 Constitution, Parliament should be able to use its amendment power to amend it.

Article 7B's self-entrenchment has a logic paradox as well. The "immutable Constitution" it seeks to establish is achieved through the very amendment process it restricts. Imagine a locked box with a note inside saying, "This box can never be opened." However, the note was placed by opening the box, and the instruction is to be seen upon opening the box. Similarly, Article 7B relied on the amendment process to become unamendable.

The self-preservation may set a dangerous precedent. Future regimes could exploit this logic to shield their amendments from scrutiny and hinder the Constitution's ability to adapt to unforeseen challenges. In this regard, it is worth recalling Justice A. B. M. Khairul Hoque's opinion regarding the referendum clause of the Fifth Amendment. Justice Hoque called it "a sheer hierocracy" that Ziaur Rahman amended the four pillars of the Constitution as per his sweet will and eventually made it impossible for Parliament to amend the new principles without seeking a referendum. Justice Hoque declared the referendum clause unconstitutional on the grounds of this hierocracy. Could the same logic apply to Article 7B? Article 7B seems to have a similar legitimacy crisis as did Zia's referendum clause.

In conclusion, Article 7B presents a complex challenge for Bangladesh's democracy. Bangladesh's aspiration for a democratic future necessitates a Constitution that can adapt to the needs of its evolving citizenry. While Article 7B's intent to safeguard our core constitutional principles is commendable, its rigid formulation undermines popular sovereignty and democratic evolution. While courts typically avoid questioning internal parliamentary proceedings, Bangladesh's Supreme Court would perhaps need a more nuanced approach, if the Article 7B is ever questioned there. We must balance legal principles with democratic ideals, potentially exploring the role of judicial review in ensuring a fair and inclusive amendment process.

The writers are Assistant Professor and Chair in the Department of Law at Z. H. Sikder University of Science and Technology, Bangladesh, and Lecturer in Law, Faculty of Business, Law and Politics at the University of Hull, United Kingdom, respectively.