The politics of unconstitutional amendments in Bangladesh

Abstract

Bangladesh’s Supreme Court entrenched the idea of “unconstitutional constitutional amendment” in 1989. Known as the “basic-structure doctrine,” the very birth of this idea in Bangladesh was facilitated by a popular mobilization against constitutional amendments by military decrees. The doctrine has since been invoked by the judiciary on several occasions, with four amendments having so far been conclusively invalidated. Apart from the judiciary, multiple political factors contributed to those annulment decisions while the political branches too had their own share in the doctrine’s usage. Yet, the available literature has largely failed to capture the political dimension of unconstitutional constitutional amendments in Bangladesh. This chapter seeks to close this gap by examining the politics of two “unconstitutional” constitutional amendments – the 8th and the 15th Amendments. It will investigate how different political forums – the legislature, judiciary, political parties, and the (constituent) people – have influenced, and become informed of, the growth of the idea of unconstitutional amendment. The central argument of this chapter is that the politics of unconstitutional amendment in Bangladesh is deeply tied to diverse parameters of local constitutional politics whereas the concerned actors operate both cooperatively and discordantly, depending on their self-interest.