Anwar Hossain Chowdhury Vs. Bangladesh 41 DLR (AD) 165 [8th Amendment Case]

Fact of the Case:

In 1982, when the Martial Law was proclaimed then the Permanent Benches system of High Court Division was introduced Bangladesh. On 10 November 1986, Constitution was restored so this system no longer operate. On 9th June 1988 , Passed the 8th Amendment Bill with view to set up 6 Permanent Benches in Barisal, Chittagong, Jessore, Sylhet, Rangpur and Comilla and make ‘Islam' as state religion. Permanent Benches was authorized to same power and jurisdiction like High Court Division. Then supreme Court made rule relating to transfer the pending case from one Permanent Benches to another Permanent Benches. Civil Appeal No 42 was filled on the ground that the case was transferred to Sylhet during the passing of Amendment Act, but Chief Justice was not authorized to do it and this should be heard at Dhaka. Civil Appeal no 43 of 1988 request for similar ground but both dismissed summarily. Appellant then filed a Writ petition No 1252 of 1988 challenging that Chief Justice was not authorized to transfer any pending case and Article 142 does not give any authority to make any amendment which destroyed the basic structure of the Constitution. High Court Division held that this Amendment compatible with the Constitution and it was possible to harmonious interpretation and summarily dismissed the case. Leave to appeal was granted and challenged the 8th Amendment that it destroyed the basic structure or feature of the Constitution.

Argument of the Petitioner:

Dr. Kamal Hossain submitted his argument. According to his argument, constitution gives us amendment power. But to amend constitution, there are some limitations. We can amend constitution under Article 142. But to amend constitution, there are some conditions and procedural conditions The argument of Dr. Kamal Hossain is given below:

1) 8th amendment violates Article 141(1) of the constitution.

2) 8th amendment creates permanent benches which violates Article 94 of the constitution. Because Supreme Court has only two Division namely Appellate Division and High Court Division.

3) 8th amendment determines territorial jurisdiction to the permanent benches which repugnants to Article 102 of the constitution.

4) 8th amendment makes a provision for the transfer of judges but we can find this provision in the real constitution.

5) There is nothing about pending proceedings in the 8th amendment.

6) amending process and amending power can not destroy the basic features of the constitution.

Mr. Syed Ishtiaq Ahmed also submitted his argument. His argument is given below:

1) 8th amendment creates territorial limitation of the High Court Division or its permanent benches are irrelevant and inappropriate of the constitutional frame.

2) The amending power is for the betterment of the Constitution itself not for the destruction. Because we can find that the amendment is made in derogation of the basic concept of the constitution. 

 

Mr. Amir -ul- Islam also his argument. According to his argument, 8th amendment destroyed the unitary character and the basic structural pillar of our Constitution. Because the basic structural pillar of our Constitution namely such as equality, social justice, humanity, sovereignty of the republic is expounded in Article 1,2 and 143 of the constitution.

The High Court Act 1861 contemplates limited territorial jurisdiction but we can find the concept in Article 102 of the constitution.

 

Argument of Respondent

1) Mr. M. Nurullah was said Permanent Bench is nothing new extensively. The learned Attorney General argued that the petitioners have not made out a case as to how the unitary character of the republic has been affected. Mr. M. Nurullah, the learned Attorney General, contended that the amendment has been for the good of the people. The concept of permanent Benches at six places having jurisdiction of the area assigned to them and the High-Court Division sitting at the permanent seat of the Supreme Court in a capital is no doubt a new concept. But this new concept has not distributed the basic concept of one Supreme Court.

2) There is limitless right of Parliament for amendment. He said, by using proper rules parliament can amended. The Attorney General submitted that by the amendment Justice will be provide to the people at less expense.

3) The learned Attorney General submitted that by the amendment there will not any illegality committed ignored the basic structure of the constitution. From two decisions of Indian Cases like Golakhnath's Case and Minority view of Keshavananda's Case.

4) The Attorney General mentioned that those Judges are connected with Appellate Division they shall sit only it and other judges shall sit only High Court Division by the Article 110,109. Attorney General contended that the High Court Division is a distinct body but it was simple fuse into it.

5) The proclamation of the 24th March 1982 was again amended by the promulgation of proclamation Order, 1986. By this new amendment of paragraph 4 of the Schedule to the Proclamation of a new paragraph.

6) There shall may be held at outside Dhaka as a Chief Justice may president approval by appoint from time to time.

7) These type of sessions of the High Court Division called as circuit Benches. The Rules made by the Supreme Court under sub- paragraph. In each Circuit Bench there need at least one judge. The Chief Justice may, sitting in any Bench at Dhaka or any other Circuit Bench.

8) 100 seat of Supreme Court - In this Article mentioned Permanent seat of the Supreme Court shall be in the capital. High Court Division and the Judges sit at the permanent of any Supreme Court. The High Court Division shall have a permanent Bench at Barisal, Chittagong, Comilla, Jessore, Rangpur and Sylhet.

9) In Indian Constitution, Article 226 it is a territorial case but in the Supreme Court no such type of concept was injected. So, far concerned as High Court Supreme Court is no such territorial jurisdiction.

10)The High Court can exercise its jurisdiction and power but it must be regulated by law for common future in these letters patent.

11) Art. 130 of Indian Constitution provides for the sitting of the Supreme Court elsewhere than Delhi.

 

Opinion of Amicus Curie

Asrarul Hossain :

He said, which amendment (8th amendment) has already passed by the parliament that is out of power of parliament. Parliament cannot be passed any amendment which is not for the people, not for the democracy and the amendment never go against the people. But the amendment is totally controversial and break the fundamental right of constitution.

Supreme Court created by the parliament but parliament does not have any power to change the structural pillar of the constitution. Supreme Court of Bangladesh is of the people, by the people and for the people. Article-100 amendment is argumentative of the constitution and that is absurd because President and Chief Justice will be think about the permanent benches, not the Parliament.

Khondker Mahbubuddin :

He said, why the amendment passed by the parliament without the consent of President and Chief Justice. Actually he could not understand why the members of Parliament gave vote for passing this kind of bill. We are not found this kind of provision in any other constitution of our neighborhood. The amendment of the constitution is declared Ultra Vires.

Opinion of Judges

Badrul Haider Chowdhury:

By establishing the opposition court demolished the adjudication sector of the Supreme Court of Bangladesh That’s why this amendment is not adjourned. There will be only one Supreme Court in Bangladesh which will be situated in Dhaka. If the President and the Chief Justice seem the need of Supreme court outside Dhaka, they can establish.

Shahabuddin Ahmed:

This amendment broke the unipotence of the High Court Division and also destroyed the basic structure of the Constitution.

M.H. Rahman:

The parliament cannot be passed amendment by only itselt. This amendment involves with the basis goals of society. So amendment will have to be pass on the basis of equity.

A.T.M. Afzal:

He disagreed with the opinions of other Judges. He rejects the idea of basic structure of the constitution and there is no factual limitation in article 142. He told that the basic structure of our constitution is not clear. The activities of the President and Chief Justice should be more effective.

Decision

1) The 8th amendment attacks the judiciary system of Bangladesh.

2) The 8th amendment is ultra virus because it violates the basic structure of the constitution such as article 7 and Atticle 26 of the constitution.

3) Article 100 is void because it bounds the territorial limits which is alien to the basic structure of the Supreme Court.

4) The 8th amendment violates Article 44, 94,162 of the constitution.

5) The 8th amendment is unconstitutional and contradicts to the public law.

Observations:

8th Amendment which amended Article 100 and set up 6 Permanent Benches outside and a permanent seat in Dhaka was challenged by Anwar Hossain vs Bangladesh that created a regionalism system which is against our spirit of nationalism.

1) Here in this case the doctrine of basic structure of Constitution was developed. There are some features which the constitution stands for. This feature can not be changed or altered by Amendment. Such as Legislature, Executive, Judiciary if any of such is altered then whole of the Constitution shall be hampered.

2) In Article 142, there is no limitation for Parliament to alter or change any provision by amendment. But if we observe Article 7, it says the supremacy of the constitution and if any law inconsistent with the constitution then the extent shall be void. But 8th amendment changed the unitary system and changed the whole Judiciary structure which directly against the supremacy of our Constitution.

3) After setting up Permanent Benches, there was no Rules for guidance it, control over its sub-ordinate courts, relation with permanent seat and its management. Chief Justice made Rules relating to transfer pending case which he was not authorized.

4) This Amendment directly violated with Article 94 that it is not consistent with the concept of two division of Supreme Court and also with Article 110 because Permanent Benches have limited jurisdiction hence it cannot transfer any case form sub ordinate court. 8th Amendment displaced Article 109 that 6 Benches has separate jurisdiction cannot control over all subordinate court or Tribunal. It also affect the right which is mentioned in Article 44, 102 and also affect Article 147 that transferred Judges to Permanent Benches it decrease remuneration and privileges of Judges. This Amendment destroyed the judiciary structure as well as basic structure.

5) Learned Counsel behalf of the petitioner played a significant role. They’ve researched a lot and argued that Parliament has limited amending power and cannot alter the basic structure of constitution.

6) Amicus Curie raise their opinion on oneness of Supreme Court and defined High Court as integral part of the Supreme Court.

7)  Respondent submit only that public justice can be achieved by this Amendment easily but failed to show the object behind the legislation and compare the Parliament Benches with India and Pakistan Judiciary system. As India and Pakistan are Federal country hence its Parliament Benches has territorial jurisdiction but ours is not. This case save our Unitary system from being Federal system.

8) This case is playing significant role in our legal system and Judiciary system. This case for the first time introduce the Doctrine of Basic Structure but did not mention which provision would be basic structure. The 15th Amendment of the Constitution add Article 7B which mention the basic provision of Constitution and that cannot be altered by Amendment. This case defines the Preamble as polestar, the fundamental wills of the society and that also cannot be altered. By following this case some amendment also challenged and declared void. Now Parliament can amend the constitution but not its basic structure.

[This Case Summary is written by Shoena Akter, Most. Shathy Khatun, Md. Mehedi Hasan, Sharmin Akter, and Mosa. Imtiaz Ara Suborna]

“All the writers are the students of Department of Land Management and Law, Jagannath University”