Anwar Hussain .Vs. Bangladesh or 8thAmendment Case

The case of Anwar Hussain .Vs. Bangladesh popularly known as 8^th Amendment case is a historic judgment in the constitutional history of independence Bangladesh. This is the first judgment whereby the Supreme Court of Bangladesh as striking down an amendment to the constitution made by the parliament. By two Writ petition the amended Art 100 & the notification of the Chief Justice were challenged as ultra vires. A division bench of the HCD dismissed the petition summarily. Leave was granted by the Appellate Division by a majority of 3 to1 striking down the 8^th amendment. The principle argument of the judgment is that, the constitution stands on certain fundamental principles which are its structural pillars which the parliament cannot amend by its amending power for; if these pillars are dismissed or damaged then the whole constitutional structure will be down.

Basic structures are:

1. Sovereignty belongs to the people.

2. Supremacy of the Constitution.

3. Democracy.

4. Republican government.

5. Independence of Judiciary.

6. Unitary state.

7. Separation of powers.

8. Fundamental rights.

These structural pillars of the constitution stand beyond any change by amendatory process. If by exercising the amending power these principles are curtailed more than one permanent seat of the Supreme Court thus destroying the unitary character of the Judiciary. The amended Art 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. This amended Art 100 is inconsistent with Art 44, 94. 101 & 102 also reduced Art 108, 109, 110 &111 of the constitution. It directly violated Art 114 this amended is illegal because there is no provision of transfer which is essential requisite for dispensation of justice. If any provision can be called the ‘pole star’ of the constitution, the nit’s Preamble. The impugned amendment is to be examined on the touch stone of the preamble with or without restoring to the doctrine of basic structure. The preamble is not only a part of the constitution; it now stands an entrenched provision that cannot be amended by the parliament.

Though this amendment it simply destroy the objectives of rule of law which is enunciated is our preamble. The above quotations from the judgment make it clear that the centre point, on which the majority relied to declare the amendment illegal, which was the basic structure of the Constitution. The Doctrine of Basic Structure is not well settled principle of the constitutional law; rather it is recent trend in and a growing principle of constitutional jurisprudence. The concept of basic structure of the Constitution can be found in the Sub-Continent, as Dr. Kamal Hossain submitted in the 8^th amendment case, in a decision of the Dhaka High Court.

This decision was upheld by the Pakistan Supreme Court in Fazlul Quder Chowdhury .Vs. Abdul Hague.

But in its Development stage in Indian jurisdiction the first formal judicial formulation of this doctrine came out in Golak Nath. Vs. State of Punjab case, 1967. Where it was decided that parliament has no power to amend fundamental right so as to take away any of them. The Indian Parliament passed 24 Amendment, 1971.Which laid down that, the parliament might in the exercise of its constituent power amend any provision of the Constitution be it of fundamental right or of any other one. The validity of the amendment which curtailed the power of judicial reviews was challenged in Kesavananda .Vs. State of Kerala case,1973.

The court by majority overruling the Golak Nath’s case, held that parliament had the power to amend any or all the provision of the constitution. Following Kesavananda principle, the court in the case of Indian Nehru Gandhi .Vs. Raj Narayan, 1979 held that the 39 amendment affected and destroyed certain structure of the constitution. The scope of the application of the doctrine of basic structure again came up for discussion in the case of Minerva Mills Ltd .Vs. Union of India, 1980.

Thus proposition that parliament cannot amend the Constitution so as to destroy its basic features was again repeat and applied by the Supreme Court in Woman Rao .Vs. Union of India, 1980. The Doctrine of Basic Structure successfully passed the acid test in 5cases in India. And Bangladesh court in the 8^th Amendment case followed the Indian decision as regard the Doctrine of Basic Structure.