1. Setting the context

In Government of Bangladesh and Others v Advocate Asaduzzaman Siddiqui and Others Footnote ¹ (the Asaduzzaman case), the Appellate Division of the Bangladesh Supreme CourtFootnote ² put the final nail in the coffin of the sixteenth constitutional amendment and reinstated the Supreme Judicial Council as the mechanism for the removal of judges of the Supreme Court. All seven judges of the Appellate Division of the Supreme Court unanimously dismissed the appeal and upheld the judgment of the High Court Division that the sixteenth constitutional amendment was repugnant to the Constitution.

To put the background facts of the case into perspective, the Constitution – as originally adopted in 1972 – provided for a parliamentary mechanism for the removal of Supreme Court judges.Footnote ³ In 1975, the power to remove such judges was vested in the President by the fourth constitutional amendment. The Supreme Judicial Council was first incorporated in the Constitution as the mechanism for the removal of judges by the Second Martial Law Proclamation (Tenth Amendment) Order (1977). In 1979, the Constitution (Fifth Amendment) Act 1979 was adopted to ratify and reaffirm, among others, the Second Martial Law Proclamation as valid. In 1989, the Appellate Division of the Supreme Court in Anwar Hossain Chowdhury and Others v Bangladesh (the Anwar Hossain Chowdhury case) broke new ground for judicial review of constitutional amendments and declared the Constitution (Eighth Amendment) Act 1988 to be unconstitutional for violating the basic structures of the Constitution.Footnote ⁴ In 2010, the Constitution (Fifth Amendment) Act 1979 was held to be repugnant to the Constitution by the High Court Division of the Supreme Court in Bangladesh Italian Marble Works Ltd v Bangladesh.Footnote ⁵ The Appellate Division, however, provisionally condoned the provisions relating to the Supreme Judicial Council until 31 December 2012 in order to enable the Parliament to make necessary amendments to the Constitution to avoid any legal ramifications.Footnote ⁶ Shortly afterwards, the Parliament by the Constitution (Fifteenth Amendment) Act 2011 reinstated, inter alia, the Supreme Judicial Council.Footnote ⁷ By the same amendment, the Parliament also adopted Article 7B, which explicitly prohibits amendments to a large number of provisions of the Constitution.Footnote ⁸ In 2014, the Parliament adopted the Constitution (Sixteenth Amendment) Act 2014, which reinstated the parliamentary mechanism for removal of Supreme Court judges in place of the Supreme Judicial Council.Footnote ⁹ In the same year, Mr Asaduzzaman Siddiqui, a member of the Bar, filed a lawsuit challenging the validity of the aforesaid constitutional amendment. The High Court Division of the Supreme Court struck down the impugned sixteenth constitutional amendment with the effect of restoring the Supreme Judicial Council.Footnote ¹⁰ A review petition filed by the government of Bangladesh as a result of the dismissal of the appeal against the judgment of the High Court Division is currently pending before the Appellate Division.Footnote ¹¹

Against this backdrop, this article provides an analysis of how the basic structure doctrine, with the enactment of Article 7B and its subsequent application in the Asaduzzaman case, has lost relevance as the most important normative tool for determining the validity of post-Article 7B amendments to the Constitution. The article begins with a brief taxonomical overview of the forms and jurisdictional basis of judicial review of constitutional amendments in Bangladesh. It then provides a theoretical exposition of the basic structure doctrine as enunciated in the Anwar Hossain Chowdhury case. In this case the Supreme Court laid down the substantive compatibility test as a normative corollary of the unamendability of the basic structures to determine the validity of constitutional amendments. The next section discusses how the newly adopted Article 7B, by incorporating explicit or codified constitutional unamendability in the Constitution, has dispensed with the need for the substantive compatibility test. A critical analysis of the majority opinion in the Asaduzzaman case will follow, especially to show that while the Court relies on Article 7B in holding the sixteenth constitutional amendment ultra vires, its reasoning in this respect is not entirely flawless. Lastly, the article observes that the normative effect of Article 7B is unlikely to dissipate even if the Appellate Division modifies or overturns its decision rendered in the Asaduzzaman case in the pending review proceedings.

2. Judicial review of constitutional amendment in Bangladesh

The Constitution of Bangladesh, as originally adopted in 1972, was silent on the issues of unamendability as well as judicial review of constitutional amendments. These issues were first raised in the Anwar Hossain Chowdhury case – which ultimately resulted in the judicial recognition of implicit unamendability or interpretative unamendability of the Constitution – that is, the basic structure doctrine.Footnote ¹² Later, in 2011, constitutional unamendability was explicitly codified through the incorporation of Article 7B in the Constitution.Footnote ¹³ While this article theoretically endorses judicial review of amendments as a normative corollary of constitutional unamendability,Footnote ¹⁴ it nevertheless holds that the successful vindication for exercising such power in any jurisdiction depends on the factors specific to the legal system concerned.Footnote ¹⁵ In view of the above, this section aims to explain the modalities of judicial review of constitutional amendments in Bangladesh.

There are two fundamental issues to begin with: (i) on what grounds a constitutional amendment can be held repugnant, and (ii) how the court should justify the exercise of its judicial power to hold a constitutional amendment repugnant.Footnote ¹⁶ To put it another way, on what method of scrutiny the Court should rely for deciding the validity of a constitutional amendment, and how the Court should account for its jurisdiction in deciding the validity of such an amendment. In Bangladesh, a constitutional amendment can be adjudged repugnant on at least three grounds: (i) lack of legislative competence, (ii) lack of procedural compliance, and (iii) lack of substantive compatibility.Footnote ¹⁷ In the current constitutional normative framework of Bangladesh, lack of legislative competence refers to a situation when any legislative body or authority brings in a constitutional amendment despite having no power to do so. Examples would include the promulgation of an ordinance by the President seeking to amend the Constitution.Footnote ¹⁸ Similarly, adopting a constitutional amendment bill by a simple majority of the members of Parliament will exemplify a lack of procedural compliance. Lack of substantive compatibility can be said to occur if any constitutional amendment stands so much at odds with the constitutional normative framework or introduces so many changes that even any magnitude of harmonious interpretation cannot rub down their mutual incongruences.Footnote ¹⁹

The aforementioned grounds came into discussion before the Court in several cases concerning the validity of constitutional amendments. For example, the Supreme Court annulled the fifthFootnote ²⁰ and the seventhFootnote ²¹ constitutional amendments on the grounds of lack of legislative competence and procedural compliance. Similarly, the matter in issue in the cases concerning the validity of the eighthFootnote ²² and the thirteenthFootnote ²³ constitutional amendments was mainly substantive compatibility. Among all, determining the substantive compatibility of a constitutional amendment vis-à-vis the Constitution appears to be a relatively more difficult task for the reason that a constitutional amendment is also a part of the Constitution. Therefore, determining the validity of a constitutional amendment vis-à-vis the Constitution necessitates a special and convincing tool. The Supreme Court resolved this issue in the Anwar Hossain Chowdhury caseFootnote ²⁴ by laying down a test for determining substantive compatibility of a constitutional amendment vis-à-vis the Constitution; this became famously known as ‘the basic feature doctrine’ or ‘the basic structure doctrine’.Footnote ²⁵

In many respects, the Anwar Hossain Chowdhury case can be designated the most important case in the history of constitutionalism in Bangladesh. One obvious reason is that it marked the beginning of the judicial review of constitutional amendments in Bangladesh. Besides, the court, in the Anwar Hossain Chowdhury case, explained the legal basis of its jurisdiction to review the validity of a constitutional amendment.Footnote ²⁶ In particular, Justice Chowdhury observed that the authority to decide the constitutionality of any laws, including a constitutional amendment, lies with the Supreme Court by virtue of Article 7(2) of the Constitution.Footnote ²⁷ Justice Chowdhury's reasoning was later reaffirmed in subsequent cases in which the Supreme Court declared a number of constitutional amendments to be invalid.Footnote ²⁸

It should be mentioned that the majority judges in the Anwar Hossain Chowdhury case drew heavily on jurisprudence from Indian jurisdictionFootnote ²⁹ in moulding their ideation of the basic structure doctrine in the Bangladesh context.Footnote ³⁰ Pertinently, Dr Kamal Hossain, in his submission, pointed out that the idea of unamendability was first pleaded before the then Dacca High Court in Muhammad Abdul Haque v Fazlul Quader Chowdhury.Footnote ³¹ It was later affirmed in Fazlul Quader Chowdhury v Muhammad Abdul Haque Footnote ³² by the Pakistan Supreme Court.Footnote ³³ In the Anwar Hossain Chowdhury case, at least one judge observed that the Constitution of Bangladesh also did contain some tangible hints on the basis of which an indigenous basic structure doctrine could be viably developed and substantiated to accommodate judicial review of constitutional amendments.Footnote ³⁴ For instance, Article 26 of the original Constitution (as adopted in 1972) unqualifiedly provided that laws that were inconsistent with the fundamental rights would become void and no laws would be made that were inconsistent with such rights. By the second constitutional amendment, a new clause was inserted into Article 26 providing that the earlier two clauses (Article 26(1) and (2) of the same provision) would not apply to any constitutional amendment.Footnote ³⁵ The later provision included in Article 26(3) implies that constitutional amendments are susceptible to judicial review and can be held repugnant for being inconsistent with the Constitution. A careful consideration of this new clause demonstrates that the legislators did not view constitutional amendments on a par with the Constitution itself and, for the same reason, they exempted constitutional amendments from judicial review in case they turned out to be inconsistent with the fundamental rights.Footnote ³⁶ Justice Chowdhury clarified such position of law as follows:Footnote ³⁷

3. The Anwar Hossain Chowdhury case: Rolling out the basic structure doctrine

During the Second Martial Law regime in Bangladesh (1982–86), the High Court Division of the Supreme Court was fragmented into seven permanent benches in 1982 via several martial law regulations. Among these seven benches, six were situated outside the capital. This diffusion was later formalised by amending original Article 100 of the Constitution by the Constitution (Eighth Amendment) Act 1988.Footnote ³⁸ In consequence, seven permanent benches were established in place of one unified High Court Division of the Supreme Court. Each bench had separate territorial jurisdiction and, thus, all pending cases were transferred to the relevant regional benches.Footnote ³⁹ The Commissioner of Affidavit in Dhaka refused to allow one individual, Anwar Hossain Chowdhury, to affirm a counter affidavit on the grounds that the writ petition concerned was transferred to the permanent bench in Sylhet Division according to the Supreme Court (High Court Division) Establishment of the Permanent Benches Rules 1988, framed under the amended Article 100 of the Constitution.Footnote ⁴⁰

Against this backdrop, two writ petitions were filed challenging the Constitution (Eighth Amendment) Act 1988 and the Rules made thereunder as ultra vires.Footnote ⁴¹ The main ground for the challenge was that the unified High Court Division of the Supreme Court, with plenary judicial power over the republic, was a basic structure of the Constitution, which could not be altered or damaged by any constitutional amendment.Footnote ⁴² The Dhaka High Court Division bench summarily rejected the petition. Leave was granted by the Appellate Division to file appeals against the judgment of the High Court Division.Footnote ⁴³

While disposing of the appeal, although the majority judges of the Appellate Division clearly relied on the basic structure doctrine to determine the validity of the impugned amendment to Article 100 of the Constitution, they did not seem much inclined to provide any detailed theoretical exposition of the doctrine.Footnote ⁴⁴ Even then, it is still possible to work out the conceptual premises on which the doctrine rests.Footnote ⁴⁵ The first premise on which the judges relied is that the constitutional normative framework rests on certain basic structures, which cannot be amended in the exercise of the amending power of the legislature.Footnote ⁴⁶ The second premise is that an amendment to the Constitution is valid subject to retention of the Constitution's basic structures, and can be declared void if adjudged inconsistent therewith. According to Justice Ahmed: ‘[Constitutional] [a]mendment is subject to the retention of the basic structures. The Court therefore has power to undo an amendment if it transgresses its limit and alters a basic structure of the Constitution’.Footnote ⁴⁷

The above propositions, if dovetailed, give rise to the observation that amendments to the Constitution are permissible in so far as they are not inconsistent with its basic structures.Footnote ⁴⁸ As may be discerned, the Parliament's power to amend the Constitution of Bangladesh in this way becomes implicitly limited even in the absence of any explicit eternity clause.Footnote ⁴⁹ This line of reasoning also allowed the Court to find a way to strike a fine balance between the original intent of the framers of the Constitution and the normative development through judicial decisions.Footnote ⁵⁰

Essentially, the preceding discussion begs the question of what are the intrinsic attributes of the basic structures of the Constitution. The majority judges in the Anwar Hossain Chowdhury case provided rather an analogical exposition of their conception of the basic structure doctrine. For example, Justice Ahmed compared the basic structures of the Constitution with the pillars of a building,Footnote ⁵¹ while Justice Chowdhury referred to the basic structures as the unalterable fabric of the Constitution.Footnote ⁵² To be precise, the majority judges viewed the basic structures as the core ideological notions of the Constitution.Footnote ⁵³ The basic structures are basic in the sense that any untoward changes to these notions will result in a breakdown of the constitutional normative system. Teleologically, the majority judges thought that the doctrine would serve as an effective measure against frequent amendments to the Constitution for the sake of party interest but at the cost of democracy.Footnote ⁵⁴ The judges noted that amendments should be intended either for removing defects or making improvements to the Constitution.Footnote ⁵⁵ This observation signifies a tacit indication of willingness on the part of the judges to take up ‘quality’ as a matter in issue in deciding the compatibility of a constitutional amendment vis-à-vis the Constitution in appropriate circumstances.Footnote ⁵⁶

At this point, a question arises as to how the Constitution and the basic structures are related to each other: whether the Constitution needs to be aligned with the basic structures, or the basic structures are embedded in the Constitution. The majority judges in the Anwar Hossain Chowdhury case adopted the latter approach.Footnote ⁵⁷ Arguably, the reason is if the Constitution is required to be aligned with the basic structures, it then follows that the Constitution and the basic structures are two separate and asymmetrically related concepts. In accordance with this paradigm, the Constitution assumes a deuterocanonical status; therefore, any constitutional provision, be it original or an amendment, if it does not ostensibly appear to be in conformity with the basic structures, will entail a compatibility issue (this approach would even warrant scrutiny of original constitutional provisions of the Constitution if they appear to be inconsistent with the basic structures).Footnote ⁵⁸ Alternatively, if the basic structures are regarded as embedded in the Constitution, it means that they are part and parcel of the Constitution. Accordingly, any inconsistency with the basic structures will eventually come to be regarded as inconsistency with the Constitution. According to this paradigm, only constitutional amendments could be held invalid in the event that they fail to be consistent with the basic structures.Footnote ⁵⁹ The majority judges in the Anwar Hossain Chowdhury case well understood the problem associated with the first paradigm because if the Constitution is regarded as a follow-on from the basic structures, not only does it lose its autochthonous statusFootnote ⁶⁰ but it also ceases to be the supreme law of the country. The Supreme Court is then logically stripped of its authority to invalidate any inconsistent constitutional amendment for the reason that the Court owes to the Constitution for its existence and is mandated to uphold the Constitution, and nothing else.Footnote ⁶¹ The foregoing analysis attests that the basic structures of the Bangladesh Constitution were thought to have been derived from the Constitution itself and not from any supra-constitutional or universal values or principles.Footnote ⁶² Until now, this position has remained unchanged in Bangladesh.

The next issue down the line is how one can identify the basic structures of the Constitution. The majority judges in the Anwar Hossain Chowdhury case did not identify the basic structures with the text of any provisions of the Constitution. Rather, they were of the view that the basic structures should be inferred from the text of the Constitution. In the words of Justice Ahmed:Footnote ⁶³

For example, it is not the text of Article 1, but the notion of the unitary republic as embodied in Article 1 that is a basic structure.Footnote ⁶⁴ This understanding will have to be reached by construing the text of Article 1 in the context of the entirety of the Constitution.Footnote ⁶⁵ Accordingly, the text of Article 1 can be amended; however, the notion that Bangladesh is a unitary republic cannot be changed.Footnote ⁶⁶ It should be noted that as the basic structures are to be inferred from the text of the Constitution, it is necessary that they be understood, explained and applied in exactly the same way as they have been set out in the Constitution. This observation makes sense at least for the simple reason that the text of an amendment would naturally be linguistically inconsistent with the constitutional provision that it seeks to repeal, replace or modify.Footnote ⁶⁷ The test therefore, first of all, is not about how much the text of an impugned amendment is linguistically inconsistent with any existing constitutional provision; rather, how inconsistent is the change caused by such an amendment with any given core ideological notion of the Constitution – that is to say, a basic structure.Footnote ⁶⁸ In his opinion in the Anwar Hossain Chowdhury case, Justice Ahmed recognised democracy, republican government, unitary state, separation of powers, independence of the judiciary, fundamental rights and so on as the basic structures, and held that the Constitution cannot be amended to make the republic a monarchy, to replace democracy with oligarchy, or to abolish the judiciary, although there is no express bar to that effect in the Constitution.Footnote ⁶⁹ In a similar vein, Justice Chowdhury argued that the Constitution had made Parliament the repository of legislative power and the Parliament cannot amend the Constitution to deprive itself thereof.Footnote ⁷⁰ Thus, the court's task is to find out to what extent any basic structure of the Constitution has been infringed by the change introduced by an amendment under scrutiny. The advantage of this approach is that it even allows scrutiny of amendments by which brand new provisions are freshly incorporated in the Constitution without repealing, replacing or modifying any existing provisions thereof.Footnote ⁷¹

In sum, the Anwar Hossain Chowdhury case recognises a twofold basic structure doctrine: (i) identification of the basic structures as the immutable ideological core of the Constitution, and (ii) judicial scrutiny to determine if any given constitutional amendment is substantively compatible with those basic structures. By analogy, the method of scrutiny as applied in the Anwar Hossain Chowdhury case could be compared with solving a jigsaw puzzle. If the entire Constitution were imagined as a jigsaw picture, each of its provisions could then be likened to a puzzle piece. In order to replace an existing puzzle piece, the new one should be able to fit into, and make up, the picture not only completely but also satisfactorily. If any new puzzle pieces are to be added, they should create no anomaly in the existing puzzle picture, but rather complement it.Footnote ⁷² For example, the majority judges in the Anwar Hossain Chowdhury case explained how the eighth amendment had created functional incongruities in giving effect to the other constitutional provisions. Justice Ahmed elaborately discussed how the impugned amendment of Article 100 had rendered the application of Article 102 (judicial review), Article 108 (Supreme Court as a court of record), Article 109 (superintendence and control over subordinate courts), Article 110 (transfer of cases from subordinate courts to the High Court Division), Article 111 (binding effect of Supreme Court judgments) either compromised or nugatory.Footnote ⁷³ Justice Chowdhury also held a similar view that the impugned amendment was inconsistent with Articles 44, 94, 101 and 102, and rendered Articles 108, 109, 110, 111 and 112 of the Constitution nugatory.Footnote ⁷⁴

An important point to note is that the majority judges in the Anwar Hossain Chowdhury case were divided in their opinions on the issue of the Supreme Court's jurisdiction to adjudge the validity of constitutional amendments. Relying on the definition of ‘law’ in Article 152(1), Justice Chowdhury argued that a constitutional amendment, being an Act of Parliament, should be designated as ‘law’ under the Constitution.Footnote ⁷⁵ He went on to conclude that any amendment that would contravene the Constitution could be declared void by the judiciary based on Article 7(2),Footnote ⁷⁶ the supremacy clause of the Constitution.Footnote ⁷⁷ Justice Ahmed and Justice Rahman, however, differed from Justice Chowdhury on the question of whether a constitutional amendment should rank as a law. Justice Ahmed and Justice Rahman argued that a constitutional amendment did not qualify as a ‘law’ under Article 7 of the Constitution.Footnote ⁷⁸ They appear to have espoused the implicit power of the Supreme Court to address the validity of constitutional amendments.Footnote ⁷⁹ As mentioned above, Justice Chowdhury's line of reasoning was reaffirmed in later cases concerning the validity of constitutional amendments.Footnote ⁸⁰ The jurisdiction of the Supreme Court is clearly stipulated in the Constitution;Footnote ⁸¹ therefore, any lack of explicit reasoning about the Court's jurisdictional basis to determine the validity of constitutional amendments will prompt criticism about the legitimacy of its decision. In addition, if the definition of ‘Act of Parliament’ in the General Clauses Act 1897 is taken into consideration, there remains no doubt that a constitutional amendment which is brought forth by an Act of Parliament and proposed as a Bill before the Parliament falls squarely under the definition of law.Footnote ⁸² Notably, both judges considered ‘constituent power’ in the sense of the power to make the Constitution as belonging to the peopleFootnote ⁸³ and did not treat a constitutional amendment at the same level as the Constitution.Footnote ⁸⁴

The resultant effect of the basic structure doctrine, as elucidated in the Anwar Hossain Chowdhury case, did not remain confined to the outcome of this case only. The Supreme Court later applied the jigsaw puzzle test again in the Abdul Mannan case.Footnote ⁸⁵ The judges in this case recognised, among others, democracy and the parliamentary system of government as the basic structures of the Constitution, and discussed how the provisions related to caretaker government in one way or another negated these basic structures. In particular, Justice Sinha (he was not the Chief Justice at the time) explained in detail in this case how the impugned thirteenth amendment was both theoretically and functionally inconsistent with the basic structures of the Constitution. He reasoned that the system of caretaker government incorporated in Chapter IIA of Part IV of the Constitution, via the impugned thirteenth amendment, introduced a kind of presidential system of government as opposed to the parliamentary system of government, and created a few other functional anomalies.Footnote ⁸⁶ The opinion of Justice Sinha in this case constitutes a perfect example of the application of the basic structure doctrine as illustrated in the Anwar Hossain Chowdhury case.

4. Article 7B: From basic structures to basic provisions

Article 7B was incorporated into the Bangladesh Constitution by the Constitution (Fifteenth Amendment) Act, 2011. It has introduced what scholars have termed explicit unamendability or codified unamendability into the Constitution of Bangladesh.Footnote ⁸⁷ The English text of Article 7B reads as follows:

Article 7B provides that the Preamble, Parts I, II and III, Article 150, and all other provisions that relate to the basic structures of the Constitution are not amendable by way of insertion, modification, substitution, repeal or by any other means.Footnote ⁸⁸ In short, Article 7B prohibits amendments to certain provisions protected thereunder as well as other provisions which constitute the basic structures of the Constitution.Footnote ⁸⁹ Thus, Article 7B marks a significant departure from the basic structure doctrine as expounded in the Anwar Hossain Chowdhury case. As may be recalled, in this case the basic structures were understood as the ideological core of the Constitution and were not identified with the text thereof.Footnote ⁹⁰ The majority judges, in this case, did not put an absolute prohibition on amending any provisions of the Constitution (unless they adversely affect the basic structures of the Constitution). The judges rather held that amendments to the constitutional provisions are permissible in so far as they do not impinge on the basic structures of the Constitution.Footnote ⁹¹ Conversely, Article 7B identifies certain provisions of the Constitution as the basic structures and provides that amendment to any of these protected provisions is absolutely prohibited in any manner whatsoever. To sum up, Article 7B has transposed the conception of basic structures from the sphere of core ideological notions to the text of the Constitution. The underlying approach of Article 7B, evident from its heading, can be rightly called ‘the basic provision doctrine’.Footnote ⁹²

In the light of the foregoing, it is possible to assess the impact of Article 7B on the Constitution. Article 7B has severely affected the application of at least two provisions: Articles 142Footnote ⁹³ and 7Footnote ⁹⁴ of the Constitution.Footnote ⁹⁵ For example, Article 7B has taken away much of the Parliament's power to amend the Constitution. The relationship between Article 7 and Article 7B is more complex. Article 7 declares the Constitution to be the supreme law to the effect that any law (including a constitutional amendment), if inconsistent with the Constitution, will be void.Footnote ⁹⁶ Thus, Article 7 contemplates that the Constitution in its entirety is the supreme law and all of its provisions have a prima facie co-equal status.Footnote ⁹⁷ On the other hand, Article 7B, by making unamendable at least more than one-third of the provisions of the Constitution,Footnote ⁹⁸ gives rise to the impression that certain constitutional provisions are superior to others. While Article 7 envisages a horizontally configured Constitution, Article 7B introduces hierarchy among the constitutional provisions.Footnote ⁹⁹ The net result is that Article 7B has created severe barriers to constitutional progress.Footnote ¹⁰⁰

Furthermore, Article 7B has modified the application of Article 26(3) in a noticeable manner. Article 26(3) excepts constitutional amendments from judicial review, even if they are inconsistent with Part III of the Constitution. As Parts I, II and III can no longer be amended because of Article 7B, the application of Article 26(3), so far as it relates to these parts, has been reduced to redundancy.Footnote ¹⁰¹ As Article 26(3) itself is included in Part III, the same cannot be deleted or modified by way of amendment.Footnote ¹⁰² Adding to the complexity, Article 7B itself cannot be amended as it falls under Part I of the Constitution. Ironically, being a constitutional amendment, Article 7B shuts the door to subsequent amendments despite the fact that it does not make any ostensible claim of superiority over other constitutional amendments in any respect.Footnote ¹⁰³

More importantly, Article 7B has brought in significant changes in the method of scrutiny to determine the validity of future amendments to the Constitution. As discussed earlier, the basic structure doctrine laid down a substantive compatibility test for determining the validity of constitutional amendments.Footnote ¹⁰⁴ Now, in view of Article 7B, any amendments to Parts I, II and III, Article 150, as well as provisions relating to the basic structures of the Constitution will simply be void for the reason that the Parliament will exceed its power if it passes such amendments.Footnote ¹⁰⁵ As a result, the court's task has come down to ascertaining whether an amendment in question has in any way amended any of those constitutional provisions placed under the protection of Article 7B. Unlike the basic structure doctrine, Article 7B thus dispenses with the need for any substantive compatibility test of a constitutional amendment coming within its purview.Footnote ¹⁰⁶ Although Article 7B makes as if to give legislative endorsement of the basic structure doctrine, it actually moderates, if it does not negate entirely, the significance of previous authorities like the Anwar Hossain Chowdhury case and the Abdul Mannan case.Footnote ¹⁰⁷

To sum up, the constitutionality of Article 7B can be seriously questioned for curbing drastically the Parliament's power to amend the Constitution. It flies in the face of the Anwar Hossain Chowdhury case, which endorsed, in general, the Parliament's power of amendment ‘subject to the retention of the basic structures’ of the Constitution. Borrowing Justice Chowdhury's reasoning, it can fairly be argued that the Constituent AssemblyFootnote ¹⁰⁸ in 1972 invested the Parliament with the power to amend the Constitution and the Parliament cannot amend the Constitution to deprive itself of it.Footnote ¹⁰⁹ Moreover, Article 7B has changed the method of judicial scrutiny for determining the validity of future amendments to the constitutional provisions protected by itself. Since the Parliament has been made incapacitated to amend provisions protected by Article 7B, what used to be the substantive compatibility test of an amendment vis-à-vis the basic structures has now been reduced to an issue of legislative competence. We will see in the next section that the Appellate Division of the Supreme Court, as a result of Article 7B, applied a new method of scrutiny in place of the substantive compatibility test in determining the validity of the sixteenth constitutional amendment in the Asaduzzaman case. It will help to epitomise the argument that the substantive compatibility test that was laid down as a sine qua non of the basic structure doctrine in the Anwar Hossain Chowdhury case has lost its significance in determining the validity of the post-Article 7B amendments.

5. Revisiting the majority opinion in the Asaduzzaman case

Following the disposal of two civil petitions for leave to appealFootnote ¹¹⁰ and, subsequently, two civil review petitionsFootnote ¹¹¹ – all arising from the Bangladesh Italian Marble Works case,Footnote ¹¹² which declared the fifth constitutional amendment ultra vires the Constitution – a special committee consisting of 15 members was formed in July 2010 to amend the Constitution.Footnote ¹¹³ Of note, although the provisions relating to the Supreme Judicial Council were covered by the fifth constitutional amendment, the special committee decided to recommend their retention without any modification.Footnote ¹¹⁴ Based on the committee's report, the Constitution (Fifteenth Amendment) Act 2011 was adopted on 30 June 2011 by a 291:1 voteFootnote ¹¹⁵ and published in the Official Gazette on 3 July 2011.Footnote ¹¹⁶ The Parliament again replaced the Supreme Judicial Council with the parliamentary mechanism for removal of Supreme Court judges by the Constitution (Sixteenth Amendment) Act 2014.Footnote ¹¹⁷ Shortly thereafter, nine advocates of the Supreme Court, affiliated with the non-governmental organisation Human Rights and Peace for Bangladesh (HRPB), filed a writ petition before the High Court Division of the Supreme Court challenging the constitutionality of the sixteenth amendment.Footnote ¹¹⁸ The High Court Division, by a majority of 2:1, declared the sixteenth amendment unconstitutional.Footnote ¹¹⁹ The Government of Bangladesh appealed against this judgment, which was dismissed by a 7:0 majority.Footnote ¹²⁰ In the Appellate Division, the opinion of Chief Justice Sinha (CJ) became the mainspring of the Court's approach and received support from all his fellow judges. The rationale of the CJ's opinion (the majority opinion) is analysed critically below.

6. Review: Quo vadis?

Lastly, one may raise the question that the Asaduzzaman case has not yet become a final decision as a review petition against the appellate judgment is already pending before the Court.Footnote ¹⁵⁰ Given the Court's trend in disposing of review petitions, three possible outcomes could be suggested. Firstly, the Appellate Division may dismiss the review petition, finding no merit in it. The Court has the power to review its own judgments passed in civil proceedings on the grounds of discovery of new and important matters or evidence having decisive weight,Footnote ¹⁵¹ or for correcting errors apparent on the face of the record.Footnote ¹⁵² Moreover, an error of law has been held not to be such a discovery.Footnote ¹⁵³ In practice, the Appellate Division in most cases has adopted a very narrow approach in considering review petitions. In a landmark case it held:Footnote ¹⁵⁴

The second possible outcome of the review proceedings in connection with the Asaduzzaman case could be that the Court modifies its earlier decision without interfering with the holding on the main issue in dispute. For example, the Appellate Division, in disposing of the review petitions filed in the Bangladesh Italian Marble Works case, modified the operative part of the judgment passed earlier in the appeal, leaving untouched its holding on the main issue of the case.Footnote ¹⁵⁵ Lastly, in a very rare move, the Appellate Division may overturn its decision in the Asaduzzaman case on the basis of entirely new reasoning. For example, in Ataur Mridha alias Ataur v The State, it held that imprisonment for life would mean imprisonment for the rest of the life of the convict.Footnote ¹⁵⁶ Later, on review, it reversed its earlier decision and held that imprisonment for life should be deemed equivalent to imprisonment for 30 years unless the convict was specifically sentenced to imprisonment for life till natural death by the Court.Footnote ¹⁵⁷

Considering the Appellate Division's usual stance on review matters as discussed above, it seems unlikely that it will overturn its own earlier 7:0 majority decision in the Asaduzzaman case. Notably, the case did not address any disputed issue of fact; therefore, any discovery of decisive new evidence seems fairly out of question. Even if the Appellate Division modifies or overturns its decision on review – similar to what happened in Bangladesh v Bangladesh Italian Marble Works Ltd and Others Footnote ¹⁵⁸ or Ataur Mridha Footnote ¹⁵⁹ as the case may be – the normative significance of Article 7B in deciding the validity of future constitutional amendments will not fall away. Article 7B enshrines the concept of explicit or codified unamendability of the Constitution, which is why the Court will be bound to take account of it when confronted with the question of the validity of constitutional amendments in an appropriate context. In other words, as long as Article 7B remains in the Constitution, its importance will be inescapable for the Court in determining the validity of constitutional amendments. On a related note, the Appellate Division will not have any scope to declare Article 7B unconstitutional in the pending review proceedings against the judgment in the Asaduzzaman case as its constitutionality was not an issue in dispute in the original writ proceedings before the High Court Division.