In Perspective: The Fifth Amendment Judgment and Reprinting the Constitution

The Supreme Court has declared the Fifth Amendment to the Constitution illegal and void ab initio; condemning military
rules in explicit language[2]. Against this backdrop, a special parliamentary committee has been formed which is understood
to have the responsibility of proposing constitutional reform to Parliament, taking into consideration this judgment.
In this respect, the Ministry of Law, Justice and Parliamentary Affairs has taken steps to reprint the Constitution in light of the
decision of the Supreme Court. Different views have been expressed on the issue of reprinting the Constitution after the Fifth
Amendment judgment. Some observers have expressed the view that this should be done after Parliament has amended the
Constitution as per the judgment whereas others have noted that the Constitution was reprinted without going through Parliament
after the judgment of the Eight Amendment case[3] and the same precedence should be followed now. However, there is more to
this than just the matter of reprinting the Constitution. Both the judgment of the Appellate Division and the High Court Division
run almost 500 pages and will be regarded as landmark decisions in our Constitutional jurisprudence along with the Eight
Amendment Case. The matters related to the judgment are complicated and technical in nature and need to be critically examined
to understand the issues that have far-reaching implications. All martial law instruments are undoubtedly illegal under the
Constitution and therefore cannot change the Constitution but at the same time the question is whether Parliament can cure that
fault? The Court answered it in the negative. Had there been no Act of Parliament (in the form of Constitutional amendment)
ratifying the martial law instruments, the answer would have been obvious.
Judicial Review of Act of Parliament:
The Constitution of Bangladesh states that the Prime Minister shall exercise the executive power of the Republic[4] and the
legislative powers shall be vested in Parliament[5]. The Constitution does not say anything about vesting of judicial power, unlike
the U.S Constitution[6]. Furthermore, there is no explicit authority given to any court to invalidate an Act of Parliament in the
Constitution. However, the sub-continental Superior Courts have invalidated Acts of Parliaments following principles of
constitutional law as applied in the famous decision by Chief Justice Marshall in Marbury Vs Madison[7] . Since both the United
States and India are federations, invariably the Superior Courts in those jurisdictions are called on to decide when there appears to
be any conflict between state and federal legislation or a question of legislative competence arises. Our Courts have taken the view
that not only that they have the authority to challenge decisions of the executive branch but also that of the legislature by
invalidating any Act of Parliament if it violates the Constitution even if it is an amending Act[8].
High Court Divisions power of Judicial Review: The power of judicial review of the High Court Division is evoked under
Article 102 of the Constitution. Article 102(1) empowers the High Court Division to give directions or orders to any person or
authority as may be appropriate to enforce any of the fundamental rights conferred in Part III. For cases other than Fundamental
Rights, Article 102 (2) empowers the High Court Division to make an order:
i. directing a person performing any functions in connection with the affairs of the Republic or of a local authority to refrain from
doing that which he is not permitted by law to do or to do that which he is required by law to do;
ii. declaring that any act done or proceeding taken by a person performing functions in connection with the affairs of the Republic
or of a local authority has been done or taken without lawful authority and is of no legal effect;
iii. directing that a person in custody be brought before it so that it may satisfy itself that he is not being held in custody without
lawful authority or in an unlawful manner or

iv. requiring a person holding or purporting to hold a public office to show under what authority he claims to hold that office.
These are analogous powers that the English Superior Courts had under the prerogative writs of mandamus, certiorari, prohibition,
habeas corpus and quo-warranto. Relief in the form of ordinary declaration and injunction is available seperately to the English
Courts[9], but such power is not separately granted by the Constitution but implicit within the language of Article 102 (2).
Therefore, if an Act of Parliament were to be challenged under this Article then it is most likely to be challenged by way of
Certiorari in the form of Article 102(2) (a) (ii).
Scope of remedy granted: Certiorari is now called quashing order. A quashing order is an order of the High Court by which
decisions of an inferior court, tribunal, public authority or any other body of persons who are susceptible to judicial review may be
quashed. If the decision is quashed, the decision maker may be free to re-consider it and as long as the error of law is not repeated
and no other error committed, may reach the same decision. Where the court makes a quashing order in respect of the decision to
which the claim relates it may remit the matter to the decision maker and direct it to reconsider the matter and reach a decision in
accordance with the judgment of the court. Alternatively, where remitting the matter would serve no purpose, the court may take
the decision itself[10]. The validity of an Act of Parliament will not be questioned by the courts[11] otherwise than by way of a
declaration that the Act is incompatible with European Union law or by way of a declaration given pursuant to the Human Rights
Act, 1998 that the Act of Parliament is incompatible with the convention for the Protection of Human Rights and Fundamental
Freedoms.
The English courts can issue a declaration of incompatibility if any legislation is found to be incompatible with the Human Rights
Act, 1998 (HRA). If found incompatible, the declaration is made pursuant to s.4 HRA and then the relevant Minister may initiate
a Parliamentary process to remedy the defect in the legislation. A declaration does not have the effect of making primary
legislation invalid. Parliament remains sovereign in the HRA, but the Government may take remedial action to amend the
legislation. Subordinate legislation declared incompatible can be quashed by a higher court. This declaration of incompatibility
does not have any effect on the validity, continuing operation or enforcement of legislation. Similarly, even inferior courts in
England and Wales are under an obligation to rely upon a rule of European Community (EC) law that is irreconcilable with
national law. The EC law has primacy over domestic law. In England and Wales, if an Act of Parliament, statutory instrument or
common law precedent is irreconcilable with EC law, all courts and tribunals are to dis-apply any provision of that Act,
instrument or common law. The offending Act or instrument is not struck down or quashed, but merely becomes unable to be
applied.
The Constitution does not specify the nature of relief that may be granted for breach of Fundamental Rights and the scope is
wide[12] since any appropriate order or direction may be given to enforce any of the Fundamental Rights. For all other
instances, Article 102(2) specifies the scope and range of remedy available from the High Court Division. Article 102(2) (a) (ii)
does not appear to give the High Court Division necessary power to strike down or quash any Act of Parliament in the form of
Certiorari. Since Parliament does not fall under the definition of statutory public authority[13], such writ may be not be issued
against Parliament. This sort of relief does not seem available from the language of Article 102(2) (a) (ii). Even if by stretching the
definition of statutory public authority Parliament is included, the remedy available is in the form of a declaration from the Court
that any act (action) done or proceeding taken by Parliament has been done or taken without lawful authority and is of no legal
effect. It is difficult to contend how the jurisdiction of the High Court Division may be evoked under Article 102(2) (a) (ii) in the
nature of Certiorari to strike down or nullify an Act of Parliament, let alone an amending Act, so as to cause it to be removed from
the statute book.
Review under the supremacy clause: Article 7 is the supremacy clause in our Constitution. It states:

Article 7. (1) All powers in the Republic belong to the people, and their exercise on behalf of the people shall be effected
only under, and by the authority of, this Constitution
(2) This Constitution is, as the solemn expression of the will of the people, the supreme law of the Republic, and if any
other law is inconsistent with this Constitution that other law shall, to the extent of the inconsistency, be void.
Fundamental rights are entrenched by a similar provisionArticle 26. (1) All existing law inconsistent with the provisions of this Part shall, to the extent of such inconsistency,
become void on the commencement of this Constitution.
(2) The State shall not make any law inconsistent with any provisions of this Part, and any law so made shall, to the extent
of such inconsistency, be void.
(3) Nothing in this article shall apply to any amendment of this Constitution made under article 142.
There is no separate provision in our Constitution that confers the High Court Division power of judicial review other than Article
102. The supremacy clause is as much of a warning to Parliament as it is guidance to the Courts. Nevertheless, invariably it is up to
the Courts to uphold and apply the supremacy clause in a case of dispute and in such a case, it is submitted that the power granted
by Article 7(2) should be deemed separate and distinct from the powers granted by Article 102(2). The types of remedy to be
provided by the Court under Article 102 (1) and 102 (2) are well demarcated. When Article 7(2) is interpreted to give the High
Court Division power to review law, such a power would be limited to a finding of or holding such a law to be in violation of
the Constitution and the nature of reliefs under Article 102 (2) is not available.
Article 13 of the Constitution of India correspondents to Article 26 of our Constitution and the word void is used in both of these
articles as well as in Article 7(2) of our Constitution. Indian Courts decided that the word void in Article 13(1) and (2) does not
mean repealed[14], nor is a law declared void under Article 13(1) and (2) obliterated from the statute book; it cannot be said that
they are still-born and non-est.[15]. The Indian Courts adopted the theory known as the theory of eclipse, which is based on the
notion that a law which violates fundamental rights is not a nullity or void ab initio, but remains unenforceable and it implicitly
recognizes the distinction between a law void for legislative competence and a law void for violating the Constitution[16].
The authorities in the United States take the view that while a law on a topic not within the competence of a legislature was a
nullity, a law on a topic within its competence but violating Constitutional prohibitions was only unenforceable. The consequence
of this is that a law void of legislative competence would have to be re-enacted but one which violates Constitutional limitation
would become effective once those limitations were removed[17].
The word void means having no legal effect[18]. Therefore if an Act of Parliament or parts thereof are found to be offending the
Constitution either under the supremacy clause or the Fundamental Rights clause, that Act or its parts will not be removed from the
statute book pursuant to the Courts order since it will amount to repeal. Rather, that Act or the offending part will simply cease
to have any legal effect or force[19]. Once there is such a finding by the Court, it would be up to Parliament to repeal or amend
the law to conform to the judgment of the Court and bring the offending Act in line with the Constitution. As long as that is not
done, the Act or its offending part simply would remain suspended and unenforceable. Pending such repeal or amendment by
Parliament, if the matter relates to breaches of Fundamental Rights, the High Court Division may give any relief that may be
appropriate to achieve enforcement of those rights; and for non-fundamental rights cases, can only give relief in the form of
prerogative writs as codified in Article 102 (2).
Reprinting the Constitution: It should be understood that through the judgment the Supreme Court did not change or amend the
Constitution but had held the Constitution (Fifth Amendment) Act, 1979 to be illegal and void[20]. Therefore, it is submitted that
the Constitution cannot be merely reprinted without going through the amendment procedure in Parliament. Following the

decision, Parliament could have followed the amending procedure to comply with the Courts judgment. Alternatively, if nothing
was done by Parliament or if it did not possess the requisite majority for amendment, a footnote could have been inserted in the
Constitution stating the Courts decision without removing the delinquent provisions from the Constitution. In India, the Forty
Second Amendment to the Constitution was found to be unconstitutional by the Supreme Court of India. However, it was not
removed from the Constitution but remained there with a footnote stating the decision of the Supreme Court[21]. In our country,
the Constitution was reprinted following the judgment of the Eight Amendment case by removing the offending Article 100 and
replacing it with the original provision; this was a wrong decision that has now developed into a wrong precedent.
Amending the Constitution: The Constitution (Fifth Amendment) Act, 1979 had purported to ratify, confirm and validate all
proclamations, regulations, orders and all actions taken under those martial law instruments. The High Court Division gave seven
main reasons for finding those ultra vires. First, all martial law proclamation, regulation and orders during that time were illegal
and void. Therefore, there was nothing for Parliament to ratify, confirm or validate. Secondly, since all martial law instruments
constituted offences, ratification by Parliament was against common right and reason. Thirdly, the Constitution was made
subordinate and subservient to the martial law instruments. Fourthly, the martial law instruments destroyed the basic feature of the
constitution. Fifthly, ratification, confirmation and validation do not come within the ambit of amendment in Article 142 of the
Constitution. Sixthly, there was no long title in the bill as required which makes it void (one of the primary conditions) and
seventhly, the amendment was made for a collateral purpose which constituted fraud upon the people. All these grounds being in
general self explanatory, a little may be said about the doctrine of basic structure.
Doctrine of Basic Structure: The doctrine of basic structure or feature of the Constitution originated in India and was accepted by
the Supreme Court of India in Kesavananda Bharti Sripadgalvaru Vs State of Kerala[22], which broadly states that the
Constitution cannot be amended so that its basic structure and framework is changed. The 42nd constitutional amendment in India
was brought by Parliament, inter alia, to supersede the Courts decision by giving Parliament vast and undefined power to amend
the Constitution. The Indian Supreme Court also declared this unconstitutional[23] stating that Parliament could not use its limited
power of amendment to expand it into an absolute power. It is interesting to note that neither our Constitution nor the Constitution
of India or Pakistan say explicitly what the basic features are. An outline can be made from the preambles, fundamental principles
of state policy or from the general framework of a Constitution. Even while expressing their views in this matter, the three Justices
of the Indian Supreme Court expressed different opinions on what they considered basic ingredients of the Indian Constitution;
they have given three separate lists with some elements in common. Although secularism was found to be a basic feature of the
Indian Constitution, the word secularism was not in the original preamble and did not find its way into the Indian Constitution
until 1976.
This doctrine was adopted by our Supreme Court in the case of Anowar Hossain Chowdhury and others Vs Bangladesh[24],
commonly known as the Eight-amendment case. The Court recognised some basic features of the Constitution like supremacy of
the Constitution, Independence of the Judiciary, Democracy, Republican government, Unitary State, Separation of Powers and
Rule of law. The Pakistan Supreme Court has also accepted this doctrine through various judgments and has found certain features
of the Constitution of Pakistan i.e. Parliamentary System, Federalism, Islamic Provisions, Fundamental Rights and Independence
of the Judiciary to be the basic features. The issue is still being hotly debated in the Constitution 18 th amendment case now pending
before the Supreme Court of Pakistan after being accepted. The Supreme Court has ordered that Article 175-A has been amended
through the epic 18th Amendment be sent back to the Parliament for review as it harmed the independence of the judiciary, such
referral itself being constitutionally doubtful. Rejecting this doctrine[25], the Federal Court of Malaysia held that had the framers
of the Constitution intended such limitation, they would have expressly provided for that. Singapore also denied[26] the
application of this doctrine.
The basic structure doctrine stipulates that even a valid Parliament with a valid amendment bill cannot change the Constitution to
alter or damage its basic features. Our Supreme Court observed that Parliament had attempted to validate various Martial law
instruments which themselves were illegal and so Parliament cannot legalise something which is illegal by bringing an
amendment. Even if attempt is made by Parliament to make absolutely legal changes to the Constitution, as per the doctrine those
changes also may be held to be invalid by the Supreme Court if the Constitutions basic framework is altered. The Supreme Court
took the original 1972 Constitution as the basis for applying the doctrine[27].

Parliaments power of amendment: There is no doubt that the power to amend the Constitution is with the Parliament alone and
the Court acknowledged that in the Fifth Amendment judgment. Some Articles can only be amended by going through referendum
(changes in the Preamble, Articles 8, 48, 56 and 142). Article 142(1) (a) gives express power to Parliament to amend by way of
addition, alteration, substitution or repeal of any provision of the Constitution. Parliament itself cannot change Article 142 without
referendum after getting approval of two-thirds of the members. The mode of passing an amending bill is quite different from
passing a general bill under Article 80. This difficulty in enacting an amendment bill is sometimes called procedural entrenchment,
devised to make amendment to the Constitution more difficult than general Acts of Parliament, which require only simple majority
to enact. It means that the people have not delegated their power of amending the amendment provision of the Constitution to
Parliament, but retained it through referendum[28]. Logically, if there is any curtailment of such power it can only be made
through referendum, nothing less will suffice. Other than this, there is no other limitation imposed on the legislatures power to
amend the Constitution by the Constitution itself. More importantly, Article 26(3) exempts amendments made under Article 142
from the restrictions imposed by Part III. The most entrenched provisions in our Constitution are the fundamental rights bestowed
under Part III, which severely limits all laws and government actions. Where even those limitations are expressly removed in case
of amendments, it is difficult to comprehend how any other implicit limitation may be inferred. Limitation on the amending power
of Parliament is quite expressly and precisely defined in Article 142 and reliance of the Court on the doctrine of basic structure,
which itself is not expressly stated therein, to overrule an amending Act, does not appear to derive any support from the language
of Article 142.
Conclusion: The Constitution is the supreme law of the Republic because it is the solemn expression of the will of the people and
all powers in the Republic belong to the people, and their exercise on behalf of the people shall be effected only under, and by the
authority of, this Constitution [29]. The will of the people being expressed only by Parliament, its power can only be curtailed by
express provisions of the Constitution (e.g. Parliament cannot amend some provisions of the Constitution without going through
referendum). While interpreting and applying the intention of the legislature, the Court cannot hold that the legislature had
intended to circumscribe its own powers unless there is clear, unambiguous and express provision in the Constitution. Quashing or
striking down an amending Act of Parliament is the highest form of judicial control over the legislature and the idea that the
framers of our Constitution left such power to be inferred from the overall structure of the Constitution seems a little far-fetched.
The framers certainly did not lack in expression if they so desired.
Some observers have expressed their reservations about the judgment and expressed the view that the Supreme Court had chosen
and picked some provisions of the Fifth amendment for approval and had not condoned the others[30]. For example, the Supreme
Court condoned the provision in the Fifth Amendment that had nullified the Fourth amendment because the Fourth amendment
itself drastically altered the original Constitution. Similarly, changes made to Article 95 in the Fifth Amendment were condoned
because that change was in conformity with the original 1972 constitution[31].
It will take years before the full impact of the decision in the Fifth Amendment case can be fully realised. At present only a few
observations can be made:
i. It has now become impossible to make any sweeping change to the Constitution (which may be necessary); it has become too
rigid. The Constitution reform committee might find it hard to suggest broad changes.
ii. The Court has tried to preserve the character and spirit of the original Constitution of 1972. This means that experience of past
thirty-eight years and changes in the political landscape will not find its expression in the Constitution.
iii. Parliament cannot ratify or validate that which is illegal in the first place. Any Act purporting to legalise an otherwise illegal
action would not stand the Courts test (i.e. it will be difficult to reconcile Parliaments power to provide
indemnity under Article 46 with the general principles laid down by the Court in the judgment).
iv. A conflict may occur between the decision of a referendum and decision of the Court. To put the matter in perspective, say
Parliament wishes to bring changes to the Preamble or any provisions of Articles 8, 48, 56 or 142. A referendum
is required for that but amendment would be carried out by way of passing an Act. If the changes are drastic in
nature, the Supreme Court may find that Act to be in violation of the basic structure of the Constitution even
though a referendum has approved it.

v. A subsequent Parliament may attempt to overrule the decision of the Court in the Fifth Amendment judgment. Parliament is
authorised to do so by legislation or Constitution amendments.
vi. Martial law has become totally unjustifiable. If there is ever an unfortunate time in the future when martial law is proclaimed,
the Constitution is most likely to be abrogated.
In Bangladesh, among the three pillars of the State, undoubtedly Parliament has become the most weakest, largely because it had
acted as rubber stamp for the people in power- either military rulers or elected governments. Parliament, as understood in this
country, is not the Parliament understood by the Civilised world. As long as it remains in its present sorrowful state, nothing good
can be expected from what we think in our country as Parliamentary Democracy. As Edward Gibbon had rightly said: The
principles of a free Constitution are irrevocably lost, when the legislative power is nominated by the executive.