Article 7B and constitutional stalemate | The Daily Star
12:00 AM, March 14, 2017 / LAST MODIFIED: 12:00 AM, March 14, 2017

Constitutional ANALYSIS

Article 7B and constitutional stalemate

There are better alternatives than Article 7B in order to safeguard the Constitution from unconstitutional intrusions. Instead of freezing the basic provisions by Article 7B, their amendment procedure could be made more rigid by requiring extraordinary majority (votes of the three fourths members of the parliament).

The fifteenth amendment has rendered quite a good number of provisions of the Constitution of Bangladesh unamendable. According to Article 7B, the preamble, Part I, Part II, Part III (subject to Emergency related provisions), and all Articles relating to the basic structure of the Constitution including Article 150 have been designated as basic provisions of the Constitution and accordingly they are not amenable to amendment. Moreover, Article 7B has made it clear that these provisions will not be amended in any possible way of amendment.

In the past, the Constitution of Bangladesh had undergone many untoward changes specially during unconstitutional regimes. These illegal regimes were prone to make intrusions in the Constitution by injecting their political ideology in order to prolong unconstitutional rule. Undoubtedly, the resultant effect was these amendments were far from reflecting the will of the people. In order to put an end to this mischievous trend, fifteenth amendment introduced Article 7B. However it has also put an end to the legitimate constitutional intervention that may be required to introduce in future. No doubt the underlined philosophy behind inserting Article 7B is to maintain the stability of the Constitution yet it has generated few constitutional dilemmas. 

In order to incorporate newfound, but well established, values of the society the amendment of the constitution is an inevitable means. That's why it's necessary to amend Constitutions and generally Constitutions do incorporate provisions that lay down procedure as to how amendments can be validly brought in. The Constitution of Bangladesh also incorporates provisions relating to amendment in Article 142. The fifteenth amendment has snatched away more than 50 articles out of 153 articles of the Constitution from the grip of Article 142 through introducing the idea of un-amenable basic provisions in Article 7B. If both the Articles are read simultaneously they will sound contradictory. Article 7B starts with “notwithstanding anything contained in Article 142 of the constitution” which has made an overt inroads into the authority of Article 142.

Apart from Article 7B, the fifteenth amendment has also inserted article 18A in the Part II of the Constitution which has made the protection and improvement of environment and biodiversity as one of the fundamental principles of state policy. Sensing the importance of preventing environment from destruction the legislators introduced the provision. The legislators could bring Article 18A in the aforesaid amendment because Article 7B was not there.  Regrettably in future, Article 7B may lead to constitutional stalemate if situation warrants change in the Constitution. If the Constitution remains unamendable contrary to people's will favoring changes, it will eventually defeat the spirit of our Constitution.                                         

Of course, there are better alternatives than Article 7B in order to safeguard the Constitution from unconstitutional intrusions. Instead of freezing the basic provisions by Article 7B, their amendment procedure could be made more rigid by requiring extraordinary majority (votes of the three fourths members of the parliament). In addition, Article 7B could specify and limit the grounds for amending the basic provisions. Moreover, public referendum in case of amendment of the basic provisions of the Constitution could serve the best alternative to Article 7B of the Constitution.

The Constitution as the solemn expression of the will of the people is the supreme law of the country, hence it should be subjected only to the will of the people and not anything else. If the will of the people behooves the legislators to bring better standards in fundamental human rights what will then happen? Will the legislators amend Article 7B to create the scope, where Article 7B itself has fallen in the ambit of the Part II of the Constitution which is simply not amendable at present?   

 

The writer is a Lecturer in Law, Northern University Bangladesh.

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