This research work was done as per the requirements of Sonargaon University for the fulfillment of my one year LL.B (Hon's) course in the Department of Law. This confirms that the Research Monograph on "Doctrine of Judiciary and Basic Structures: An Appraisal from the Perspective of the Bangladesh Constitution" was prepared by Tahera Naznin, ID No: LL.B in Partial Fulfillment of the Program Requirements: LL.B (Hon's) of Sonargaon University in Daki. The doctrine of basic structure is a doctrine of a judge that certain features of the constitution exceed the limit of Parliament's power to amend.
The Constitution of Bangladesh, officially the Constitution of the People's Republic of Bangladesh, is the supreme law of Bangladesh. The four fundamental principles of the Constitution are nationalism1, socialism, democracy and secularism.2 The Constitution strives to create a socialist society in which the rule of law, fundamental human rights and freedom, equality and justice, politically, economically and socially, are of great importance. secured for all its citizens. The judicial precedent is set in the Constitution of Bangladesh under Article 111.4 making Bangladesh an integral part of the common law world.
The Constitution came into force on Bangladesh Victory Day, exactly one year after the signing of the Instrument of Surrender.5. So this research monograph is not an exception to this limitation and has reduced the scope of the study to some constitutionalism changes is Bangladesh.
Chapter- 2 Conceptual Analysis
- Conceptual Framework
- Background
- The origin of the concept of "Basic Structures" of the constitution
- Types of Basic Structure
- Basic Structure principle in general sense or Numerable sense
- Basic Structure principle in real or substantive sense
- The Basic structure of the constitution of Bangladesh
- Supremacy of the constitution which states in article 7 of the constitution
- Democracy which states in the preamble
- Republican government which states in the article 1 of the constitution
- Independence of judiciary which states in article 22 of the constitution
- Unitary state which is mentioned in article 9 of the constitution
- Separation of powers which is mentioned in article 22 of the constitution
- Fundamental rights which is mentioned in from article 26 to 47A of the constitution
It amended the Constitution to expressly provide that Parliament has the power to amend any part of the Constitution, including the provisions relating to Fundamental Rights. The concept of the basic structure of the constitution can be found in the sub-continent in the case of Pakistan Supreme Court in -Fazlil Quder Chowdhury Vs. This was seen in the judgment of the case of BADRUL HAIDER CHOWDHURY Vs.
In a real or substantive sense, the doctrine of basic structure means the fundamental principles and objectives of the constitution that form its structural pillars. Nothing can be done that would result in a violation of the Constitution and its fundamental characteristics. The main argument of the judgment is that the Constitution rests on certain fundamental principles, which form its structural pillars.
Chapter-3
Analysis of Judicial Power and Basic Structure Doctrine of Bangladesh Constitution
- The Emergency (1975)
- Implied Limitations of the Amending Power
- Evolution of the doctrine
- Recognition Bangladesh
34;Perhaps the Supreme Court's position is influenced by the fact that it has not yet been confronted with extreme forms of constitutional amendment. If the ruling party sees its majority shrink, could the ruling party amend Article 368 so that the power of amendment rests with the president acting on the advice of the prime minister. Could the amendment power be used to abolish the constitution and, say, reintroduce the rule of a moghul emperor or of the English crown?
The 42nd Amendment was enacted by the Indira Gandhi government in response to the Kesavananda Bharati judgment in an attempt to reduce the Supreme Court's power of judicial review of constitutional amendments. In the Minerva Mills case, Nanabhoy Palkhivala successfully pushed the Supreme Court to declare sections 4 and 55 of the 42nd Amendment unconstitutional.[13] The constitutionality of sections 4 and 55 of the 42nd Amendment was challenged in this case, when Charan Singh was the caretaker Prime Minister. It further adopted and evolved the doctrine of basic structure of the Constitution.14 As previously held through the doctrine of basic structure in the Kesavananda case, the Court held that Parliament could not convert limited power into an unlimited power by amending the constitution, by changed had claimed to do with the 42nd amendment).
Limited power to amend is indeed one of the basic features of our Constitution, and therefore the limitations of that power cannot be overturned. The court recognized the fundamental rights conferred by the Constitution, respect for the rule of law and the right to ownership of private property as basic features of the Constitution of Belize, as well as the separation of powers, which Chief. 597 of 2011 19 and repealed portions of the Belize Telecommunications (Amendment) Act of 2011 and the Belize Constitution (Eighth) Amendment Act of 2011.
This was found to interfere with the separation of powers previously identified as part of the basic structure of the Belizean Constitution. In these cases, the Federal Court held that the delegation of the judicial power of the Federation to the civil courts was part of the basic structure of the Constitution and could not be removed even by constitutional amendment. Among the characteristics protected by the doctrine, the ruling identified democracy, federalism and judicial independence.
The Singapore High Court denied the application of the basic features doctrine in Singapore in Teo Soh Lung v.
Chapter -4
Constitution of Bangladesh
- Written Constitution
- Definition of Constitution
- Rigid Constitution
- Constitutional of Amendment
- Preamble
- Supremacy of the Constitution
- Unitary Government System
- Unicameral Legislature
- Fundamental Principle of State Policy
- Parliamentary form of Government
- Independence of Judiciary
- Doctrine of Basic Structure of the Constitution
- Constitutional Amendments Legislative Versus Judicial
- How Did It Amend?
The Constitution of Bangladesh begins with a preamble described as the guiding star of the constitution. Article (8) of the Constitution provides for four important fundamental principles of state policy. a) Nationalism b) Democracy c) Socialism d) Secularism. Under the constitution, the chief justice would be appointed by the president and other Supreme Court judges who would be appointed after consultation with the chief justice.
The appointment of judges and subordinate magistrates would also be done in consultation with the Supreme Court. Since 2012, the Constitution of the People's Republic of Bangladesh has been amended by Parliament fifteen times through fifteen Constitutional Amendment Acts. However, in relation to the rest of the ten amendments (from 4 to 14) there were two types of changes: Legislative changes (with constitutional amendments); and Judicial changes (by means of a judicial declaration with a judicial declaration with the power of judicial review).30.
The draft amendment was passed by 327-0 votes based on the recommendation of the Parliamentary Standing Committee. 30 https://www.lawyersnjurists.com/article/amendment-of-the-constitution-of-bangladesh last accessed 11 March 2022. On 7 September Anisul introduced the bill saying it would restore the original Article 96 in constitution adopted in 1972.
The effect of the amendment was that all changes or repeals of the Constitution from. The Sixth Amendment Act was passed by the Jatiya Sangsad; it amended Articles 51 and 66 of the Constitution. This appeal is by way of certificate under Article 103(2)(a) of the Constitution of the People's Republic of Bangladesh.
Accordingly, this appeal has been brought directly to this Division as provided for in Order XII of the Supreme Court of Bangladesh (Appellate Division) Rules, 1988. It involves determination of the legality of Article 3 of the Constitution (Seventh Amendment), 1986 (Act 1 of in 1986). The Supreme Court later declared the amendment to Article 100 invalid as it changed the basic structure of the constitution.
Chapter -5
Judicial Power and Basic Structure Doctrine Appraisal of Bangladesh Constitution
- Judicial Power Doctrine of Basic Structure of Bangladesh Constitution
- Delimitation of Basic Structures
- Independence of judiciary is a part of the basic structure
- Philosophy Underlying the Doctrine of Basic Structure
The dignity of the individual which is ensured by the various freedom and fundamental rights in part III and the directions to build a welfare state contained in a part of the Constitution. The Supreme Court of India has stated, "The principle of free and fair election" which is the essential postulate of democracy is part of the basic feature of the constitution. 65 Some of the following have been extracted from the judgments of the Supreme Court of India as the basic feature which cannot be amended.
Masdar Hossain 52 DLR(AD) 82, Mustafa Kamal,C.J while interpreting Article 94(4) and 116A clearly stated that the independence of judiciary is one of the pillars of our Constitution and is maintained in Article 59 as follows. 84 Seervai in his Constitutional Law of India 85 rightly observed that the consequence of discarding the doctrine of basic structure would be so grave and so contrary to the object of the Constitution that the consequence of uncertainty would be insignificant in comparison. Parliament, being a creature of the Constitution, must exercise its powers within the constitutional bounds and limits.
If parliament had the power to destroy the basic feature of the Constitution, it would cease to be a creature of the Constitution and become its master. While the judiciary, like parliament, is also the creature of the Constitution, it is the Constitution that simultaneously, somewhere directly and somewhere indirectly, empowers this judiciary to play the role of arbiter – to ensure that the executive and legislatures do not exceed their constitutional limits. This is why the judiciary under a written constitution is called the guardian of the constitution.
Most judges to date have considered this doctrine from a numerical point of view. Similarly, in the case of the 8th Amendment in Bangladesh, the judges could not agree on what constituted the basic structure of the constitution. Now we can say that there is no hard and fast rule for the basic feature of a constitution.
If we consider the historical background, the preamble, the overall scheme of the Constitution and its relevant provisions including Article 142, then there can be no difficulty in determining what are the basic elements of the basic structure of the Constitution.
Chapter-6
Recommendations and Conclusion
Recommendations
But only some amendments were approved without proper arguments and thorough discussions of all the advocates, including people who advocate different, sometimes divergent, ideological or opinion views. Changes that resulted from unsophisticated thinking, lack of respect for democratic practices or propriety were clearly met with severe disapproval, sometimes due to opportunistic motives and sometimes due to sectarian political ideas. In short, we have no hostility to the enactment of a new amendment by the present or incoming governments, but if and when it is completed, there must be busy debates and input from all political parties, the intelligentsia and the frightened citizenry.
The reading of the doctrine of basic structure for this research suggests several models according to which the doctrine can be identified and evaluated. The three forms used to examine the doctrine are Basic Structure and the theory of Originalism, Basic Structure as a balancing tool, and Basic Structure as an instrument of growth. The tool is used to examine some of the limitations of the basic structure doctrine in the background of weak societies and suggests a deviant and progressive approach in judicial applications of key constitutional beliefs.
Bibliography
