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Anwar Hossain Chowdhury vs. Bangladesh

1) Anwar Hossain Chowdhury challenged the 1988 amendment to article 100iii of the Bangladesh constitution, which established permanent benches of the High Court outside of Dhaka, as being inconsistent with the constitution. 2) The High Court dismissed the petitions, but the appeal court found the amendment to be ultra vires as it conflicted with the basic structure of the constitution, including the independence of the judiciary. 3) The Supreme Court's decision established that certain fundamental provisions of the Bangladesh constitution, including the independence of the judiciary, cannot be amended by parliament alone as they form the basic structure of the government.

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3K views3 pages

Anwar Hossain Chowdhury vs. Bangladesh

1) Anwar Hossain Chowdhury challenged the 1988 amendment to article 100iii of the Bangladesh constitution, which established permanent benches of the High Court outside of Dhaka, as being inconsistent with the constitution. 2) The High Court dismissed the petitions, but the appeal court found the amendment to be ultra vires as it conflicted with the basic structure of the constitution, including the independence of the judiciary. 3) The Supreme Court's decision established that certain fundamental provisions of the Bangladesh constitution, including the independence of the judiciary, cannot be amended by parliament alone as they form the basic structure of the government.

Uploaded by

Rimel hossen
Copyright
© © All Rights Reserved
We take content rights seriously. If you suspect this is your content, claim it here.
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Download as DOCX, PDF, TXT or read online on Scribd
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ANWAR HOSSAIN CHOWDHURY VS.

BANGLADESH

THE FACT OF THE CASE


Bangladesh Parliament amended article 100iii of the constitution in 1988 incorporating the
provision for six permanent benches of a High Court for, Sylhet, Rangpur, Barisal, Chittagong,
Jessore, and Comilla. The fact is that one division of the Supreme Court was in the capital city
Dhaka, but at the time of the 8th amendment, the parliament said that one division is not needed
in only capital city Dhaka as should be outside of Dhaka also as six divisions. That's why
Anwar Hossain Chowdhury challenges that 8th amendment as viewing inconsistent of the
constitutional article 102iv because the fundamental principle cannot be changed by a political
majority.

ISSUES

The Amendment Impaired the Rule of Law and Amending Power is Limited.
The Amendment of the Constitution is Declared as Ultra Vires.
Basic Structure of the Constitution is Broken by the Parliament.

THE JUDICIAL DECISION OF THIS CASE


A division bench of high court division summarily dismissed the two petitions brought by
the petitioners; upon an application to the appellate court, leave was granted for an appeal.
The appeal court after considering the case held that the power of amendment of the
constitution under article 142 is limited power and conflicts with the concept of the
supremacy of the constitution contained in article 7. The court further held that article 7
among others, are basic features of the constitution and therefore cannot be amended and
declared the amendment made by the parliament as ultra vires.xviii
According to Justice M.H. Rahman, J, in deciding the constitutionality of the amendment,
recourse should be made in the preamble. He observed that the constitution has an
entrenched provision which cannot be amended by the Parliament alone.xix On the
contrary, the government cannot use arbitrary power as the court decision. However, the
constitutionality of this amendment was challenged over the judiciary system in the above
case popularly referred to as the 8th amendment.

SIGNIFICANCE OF THE CASE TO PUBLIC LAW


The legitimacy of a law is verified by the touchstone of the Constitution, whereas such
legitimacy is inherent and as such it is unchangeable. At trial, the legitimacy of any amendment
article 7 is the touchstone in this case and thus no article is unamended especially which is
inconsistent the constitution. The parliament cannot use the rule of law over the judiciary body
because the constitution is not ordinary legislation. It’s a basic structure how a country is
governed and how it reflects history, ethos, and aspirations of people of a country.

Reasoning:
Judges has given their decision on the basis that this amended Article 100 is conflicting with
Article 44, 94. 101 & 102 also compact Articles 108, 109, 110 & 111 of the constitution. It
directly violated Article 114 this amended is illegitimate since there is no provision of transfer
which is essential obligation for relaxation of the rules of justice.

Further, there are some fundamental provisions in the constitution which only belongs to the
people of the state such as Supremacy of the Constitution, Democracy, Republican government,
Independence of Judiciary, Unitary state, Separation of powers and Fundamental rights. These
structural pillars of the constitution can not be changed or amend by the parliament (under article
142). If these pillars changed or damaged then the entire constitutional configuration will lose its
validity. The court cited different Indian cases to support their decision such as Minerva Mills
Ltd vs. Union of India, Woman Rao vs. Union of India etc. Thus Appellate division followed
the Indian decision as regard the doctrine of Basic Structure.
Judges included that if by implementing the amending power these principles changed and
establish more than one stable seat of the Supreme Court then the unitary quality of the Judiciary
will be broken. The amended Art 100 is ultra vires for the reason has destroyed the vital limb of
the judiciary by setting up adversary courts to the High Court Division in the name of permanent
Benches presenting full jurisdiction, power and role of the High Court Division.
The court also contended that Article 7 and 26 of Bangladesh constitution exercise authority over
Article 142. Therefore an amendment under article 142 will be invalid if it is inconsistent with
article 7 or 26.

CONCLUSION
Last but not least, it is understandable that judicial independence should be protected from
Parliament.xxiv If the judiciary is controlled by the executive body, the rule of law must immune
to their impacts. I think that parliament can do a modification of the error of commission or
omission or alters the system without fundamentally changing its nature because it operates
within the theoretical parameters of the existing constitution. Additionally, People can get a
brief instance of constitutional supremacy through this historical decision Constitutional
amendment. The yardstick to justify a constitutional modification is not only a basic structure
but also public interest according to the Bangladesh constitution. However, the supreme court
of Bangladesh faces some real and convincing challenges in this case relating to its

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