Eternal Provisions in the Constitution of Bangladesh: A Constitution Once and for All?

Abstract

Many modern constitutions today contain what is called eternity clauses (also known as constitutional entrenchment), which make one or more constitutional provisions unamendable. The Constitution of the People’s Republic of Bangladesh (hereafter ‘the Constitution’) originally did not enact any such eternity clause. An eternity clause, however, has been entrenched in 2011 through the 15th amendment to the Constitution. Long before the enactment of the eternity clause, the Supreme Court of Bangladesh in a 1989 famous decision established the basic structure doctrine or the idea of ‘unconstitutional constitutional amendment’, ruling that Parliament lacks authority to amend the Constitution in a way that would destroy its basic structure. By invoking the basic structure doctrine, the Supreme Court has so far struck down 4 out of 16 constitutional amendments with finality. After the Court handed down its annulment decision in May 2011 invalidating the 13th amendment, the Constitution was amended to enact, among others, an extraordinarily wide eternity clause, article 7B. With this, Bangladesh became the second country in South Asia, after Afghanistan, to have constitutional entrenchment.