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by Ali Mashraf

Bangladesh Study Forum (BDSF) hosted its 108th Public Lecture titled ‘16th Amendment: A Dilemma to Constitutionalism in Bangladesh on Saturday, October 28, 2017 at DUCSU Building at Dhaka University. The speakers of the session were Hasnat Quaium, Advocate, Supreme Court of Bangladesh, Dr. S M Masum Billah, Assistant Professor, Department of Law, Jagannath University and Dr. Ridwanul Hoque, Professor, Department of Law, University of Dhaka.

After the welcome speech by Mr. Saimum Reza Piash of BDSF, Dr. S M Masum Billah was invited to deliver his speech. At the onset, Dr. Billah termed the 16th amendment verdict as a landmark to the constitutional journey of Bangladesh. However, he observed that the obiter dicta of the judgment, not the ratio decidendi were being analyzed and dissected mostly by the legal and non-legal personnel of our country. He then pointed out to the vast difference between the submissions of the Attorney General on behalf of the government and the submissions of the amicus curiae.

Dr. Billah also criticized the length of the verdict saying that a shorter, more coherent and consistent verdict would have made this the best verdict pronounced by Justice Surendra Kumar Sinha. He commented that after the 15th amendment, the provision of amending the Constitution had become something quite difficult and thus, the government was a victim of its own actions. Moreover, he posed an important question in relation to the verdict: whether the Constitution is a question of being or becoming?

Towards the end of his speech, Dr. Billah reiterated that it was a concern as to why the majority of the amicus curiae had lost confidence on the Parliament and opted for the Supreme Judicial Council to have the power of impeaching the apex court judges. He concluded by saying that for the time being, everyone should welcome this verdict.

Afterwards, Professor Dr. Ridwanul Hoque shared his thoughts on the topic. Dr. Hoque pronounced that the Appellate Division’s verdict regarding the 16th amendment was quite damaging for constitutionalism in Bangladesh. However, he also remarked that whether we have constitutionalism in Bangladesh or not is a million dollar question. Rather, he submitted that what we have is political constitutionalism.

Dr. Hoque then analyzed various issues of the judgment. He gave a historical background of the Constitutional provision of the impeachment of the apex court judges, the misinterpretation and wrong analysis of Article 70 in relation to this verdict, the failure of the Parliament to not make any law regarding the procedure of impeachment that was stated in the amendment, the emotional words of the Court in relation to the Parliament becoming whimsical in exercising this power of impeachment and the weak submission of the Attorney General in the case.

While he remarked that the judgment was purely political, he also termed the amendment a ‘revenge amendment’ by the Parliament. Nonetheless, Dr. Hoque emphasized that this amendment was not against the basic structure of the Constitution since independence of the judiciary and the provisions of Article 96 are not the same thing. Additionally, he discussed about the development of the basic structure doctrine in the European region. He cited three instances, including one in our jurisdiction where the Court held that original provisions of the Constitution cannot be declared unlawful.

Citing similar examples of the decisions of the apex court of Russia and the Spanish Constitutional Court, he asserted that the consequence of the Court interfering in meta-political issues was very bad. Lastly, he put forward that despite it being a revenge amendment, it had restored an original provision and thus by declaring it unconstitutional, the Court had overstepped its limit; something which the Court had no power to do so.

Advocate Hasnat Quaium was the last speaker of the event. He agreed with Dr. Hoque regarding the verdict being political but added that this was not the first political judgment by the Court. He painted a picture of the Constitution being different than the other laws of the state and that it was not only a legal instrument, but also a political one. He also added that this was an amendment in ‘apparent’ sense, not in the ‘real’ sense.

Throughout his lecture, Mr. Quaium talked about the 13th amendment case, the provision of Article 70 and its relation to the 16th amendment case, the difference of opinions regarding the original provisions of our Constitution and the Court being the recent victim of the ongoing conflict between ‘i’-ness and ‘we’-ness in our political sphere. He concluded by saying that this verdict was a cry for help from the Court to save itself from the clutches of the ever growing power of the Parliament.

Following the speeches, an elaborate Q&A session took place. The event finally ended with a vote of thanks from BDSF and tokens of appreciation being handed over to the speakers. The session was attended by numerous university students, academicians and law practitioners. BDSF intends to host more such public lectures on ongoing political and social issues in near future.