The Parliament is given the legislative power in Article 65 while the procedure of amending the constitution is prescribed in Article 142 of the Constitution of the People’s Republic of Bangladesh. An amendment to the constitution may be made through a Bill passed in the parliament by the votes of not less then two thirds of the total members of the Parliament. There is however, clause (1A) inserted in Article 142 by the Second Proclamation Order No IV of 1978. This clause provided for referendum in excess of two-thirds majority in cases where the amending Bill intended to amend the preamble, any of the Articles 8, 48, 56, 58, 80, 92A and 142. The President shall refer the Bill to referendum before his assent his given. This again was amended by the Act No XXVIII of 1991, which omitted Articles 58, 80 and 92A from the list.
Article 142 starts with a Non-Obstante clause'” A non-obstante clause is usually used ,in a provision to indicate that1 that provision should prevail despite anything to the contrary in the provision mentioned in such Non-Obstante Clause1 (The Interpretation of Statutes – Bind’ra, p949) In other words it indicates an idea that the power to amend1 the constitution Is not controlled by any other provision in the constitution. Art. 142 gives power to Parliament to amend any provision of the Constitution by way of addition, alteration, substitution or repeal. Addition, alteration, substitution or repeal are merely modes of amendment and if the act done does not come within the meaning of ‘amendment’, it will not be valid, notwithstanding that all the procedural requirements have been fulfilled. Amendment means a change in some of the existing provisions of a statute1 and a law is amended when it is hi whole or in part permitted to remain and something is added to, or taken from it, or it is in some way changed or altered in order to make it more complete, or perfect, or effective. An amendment is not the same thing as a repeal, although it may operate as a repeal to a certain degree.
Art. 142 of the Constitution confers power on Parliament to amend the Constitution. For such amendment there are some procedural requirements. A Bill for amendment of the Constitution must contain a long title expressly stating that it will amend a provision of the Constitution. It was contended that the long title must specifically mention which provision is sought to be amended, otherwise the amendment passed will be void. The majority decision of the Appellate Division is that the specific provision need not be mentioned in the Bill and the requirement will be fulfilled if the long title states that certain provision or provisions is or are sought to be amended. No such Bill shall be presented to the President for his assent unless it is passed by the votes of not less than two-thirds of the total number of members of Parliament. The President shall within seven days of the presentation of the Bill after being passed in Parliament with the
requisite majority assent to the Bill and if he fails to assent within that time he shall be deemed to have assented to the Bill. But if the Bill seeks to amend the Preamble or any of the provisions of arts.8, 48, 56 or 142 the President shall within seven days of presentation of the Bill for his assent cause it to be referred to a referendum and if the majority votes in the referendum are in favour of the amendment the President shall be deemed to have assented to the Bill, otherwise the President shall be deemed to have withheld his assent from the Bill. The procedural requirements are mandatory and non-compliance of the requirements will render the amendment void.
Discussion about article 142(1 A) of the Constitution of Bangladesh:
TO borrow words from Justice Mustafa Kamal, some provisions of the constitution are considered to be ‘basic’ while others may be termed as circumstantial. The constitutional lawyers and judges may discern some fundamental structural designs in a constitution as when an architect views a building. Call it basic structures or structural pillars or by whatever name they are there (Constitution: Trends and Issues, p 14). By now this fascinating doctrine of Basic Structure has become a vibrant tool of judicial activism to protect the constitutional edifice from ruination in hands of the invincible parliamentary super majority. The substance of the claim is that the structural pillars of the constitution cannot be dismantled by parliament in the name of amendment. It was planted strappingly in the judicial culture of Bangladesh by famous Anwar Hossain Chowdhury v. Bangladesh. A majority of 3:1 of the Appellate Division of the Supreme Court struck down the Constitution (8th) Amendment Act, 1988 establishing six permanent benches of the High Court Division outside Dhaka on the charge of destroying the unitary character of Republic, a basic structure of the Constitution as it was claimed.
Article 142(1 A) the patent ills:
Clause (1A) was inserted in Article 142 by the Second Proclamation (Fifteenth Amendment) Order, 1978 (Second Proclamation Order no IV of 1978). It provided that the renovated and express mandate of the people through Referendum shall be required along side the 2/3 majority in the House to amend some designated provisions of the Constitution. Looking at the list of provisions specially designated therein (Preamble, Articles 8, 48, 56, 58, 80 or 92A) it prima facie appears that General Zia couldn’t have trust enough on the servile Parliament to be’
established’ through the Second Parliamentary Election. To perpetuate the already settled omnipotent presidency along with the philosophical distortion in the Preamble, he needed something like clause (1 A). Hence, Advocate Mahmudul Islam put a sharp question mark over the legality of this clause being an extra-constitutional insertion Then it was Honorable Justice ABM Khairul Huq who unveiled the secrets:
“Addition of clause (1 A) was craftily made. In the one hand the President and the Chief Martial Law Administrator was not only merrily making all the amendments in the Constitution of the People’s Republic of Bangladesh according to his own whims and caprices by his order………. but at the same time, made provision in Article 142 itself in such a manner so that the amended provisions cannot be changed even by the two thirds majority members of the parliament short of a referendum. In short by executive order of one person, amendment of the Constitution can be made at any time and in any manner but even the two thirds majority of the representative of the people cannot further amend it. We are simply charmed by the sheer hierocracy of the whole process”
Article 142(1A): The latent cure:
In spite of the patent ills in Clause 1(A), looked upon from a different angle, it may reveal a latent cure. Just consider the 4th Amendment to the Constitution. Many of us, including me, firmly believe that it was a right but much belated step. Yet this 4th Amendment has blemished Bangabandhu’s glorious patriotism and devotion towards the cause of his countrymen to a considerable extent, we may like it or not. It provided a ready tool in the hands of the anti-liberation force to propagate against the Patriot. It was a Parliament elected in a multi-party-democracy that attempted to introduce a one party system. Theoretically it is always a good question to ask. Had the people mandated the parliament to destroy the very system under which it took birth? In 1975 there was no parliamentary supremacy in Bangladesh. Given the situation it might have been the wisest on the part of Bangabandhu to seek a fresh mandate from the people on his new political standing before starting the second revolution. I’m sure the people of this country would never turn back on him.
Now come to Article 142(1 A). By requiring Referendum in certain cases, didn’t it subconsciously put a clog on a parliamentary super-majority acting in an unaccountable fashion? We should not forget that this is a country where the winners habitually tend to do everything they wish until they are de-elected in the next election! Article 142(1 A) healing the dilemmas of Basic Structure’:
The Basic Structure carries with it some inborn fogginess and controversies. In Golak Nath v. State of Punjab AIR 1967 SC 1643 the Indian Supreme Court candidly conceived the idea that there is a distinction between plenary legislative power and constituent power of parliament. Parliament’s plenary legislative power is subject to judicial review while the constituent power is not. Hence the Court may invalidate a law but not a constitutional amendment. This again has been sharply rejected in Kehsavananda Bharati v. State of Kerala (1973) in India31, and Anwar Hossain Chowdhury v. Bangladesh (1989) in Bangladesh32. Now the Court, the guardian of the Constitution, is not ready to leave the constitutional edifice vulnerable at the hands of the Parliament.
But should it not mean that some principles would be so permanently fixed to allow the dead rule the world from the grave? Do the ideologies of one generation bind the later? Then where to accommodate the supremacy of the people? What to do in case the people overwhelmingly support an amendment violating the basic structure? So many people in Bangladesh still believe that decentralization of the Supreme Court in 1988 was a right step! Here the judiciary not only trumps over the ‘general will of the people’ expressed through an elected legislature, but also over the ‘absolute will of the people’ on a particular issue. Moreover the Judiciary gets a free hand in defining ‘basic structure1 making the concept a fluctuating one and hence bad. The Judiciary may come out with new ‘basic structures’ whenever convenient. It is indeed the case in India.
Article 142(1 A) nicely answers those dilemmas. In one sense Article 142(1 A) provides a sort of constitutional recognition to the judicial claim of “basic structure1. By this the Constitution itself recognizes that there are something which are “basic’ (B.H Chowdhury J in Anwar Hossain Case, Para 256) and these need higher protection than the bulk so that Parliament may not manipulate them hi its whim and caprices. In the other sense, it cures the iron fist immutability of “basic structures’ by saying that basic structures are particularly hard to be amended but not un-amendable. Now inter-generational adaptation is reconciled with the need for stability. Again,
The basic structures are concretized by specification in the Constitution itself. No doubt Article 142(1 A) is an illegal inclusion in the Constitution by an illegal authority through an illegal exercise of power. After the Appellate Division ruling on the 5th Amendment case it is now almost at the vanishing point. The Government is bound to re-print the Constitution deleting this, if Appellate Division so directs. But whatever motive the then military ‘President’ had in his mind, the Clause as it stands now may serve a very useful purpose of safeguarding constitutional fabric from the fanaticism of a winner-takes-all politics. The government is planning to consult the Law Commission on 5th Amendment issue. The Commission may seriously consider recommending adapted re-insertion of the gist of Article 142(1 A) de novo by the incumbent Parliament.
Necessity of amendment of provisions:
Dr. Herman Finer defines constitution as the process of amendment because in his view to amend is to deconstitute or reconstitute. He considers the amending clause to be a so fundamental to a constitution that he calls that clause the constitution itself. Framers of our constitution therefore thought it wise to incorporate Provision for amendment of the constitution and they have done it with a view to overcome the difficulties which may encounter in future in the working of the constitution. No generation has monopoly of wisdom nor has it a right to place fetters on future generation to mould the machinery of government according to their requirements. If no provisions were made for the amendment of the constitution, the people would have recourse to extra- constitutional method like revolution to change the constitution.