Anwar Hossain Chowdhury vs Government of the People’s Republic of Bangladesh
Citation : 1989 BLD (SPL) 1
Jurisdiction : Bangladesh
Appellant : Anwar Hossain Chowdhury
Respondent : Government of the People’s Republic of Bangladesh and Others
Historical Background :
During the Second Martial Law regime in Bangladesh (1982–86), the High Court Division of the Supreme Court was divided into seven permanent benches in 1982 via several martial law regulations. Among these seven benches, six were situated outside the capital. This diffusion was later formalized by amending original Article 100 of the Constitution by the Constitution (Eighth Amendment) Act 1988. The amendment authorized the President to determine their territorial jurisdiction through official notification. This Act designated ‘Islam’ as the state religion of Bangladesh.
It also amended:
Article 5 of the Constitution, replacing the word ‘Bengali’ with ‘Bangla’ and ‘Dacca’ with ‘Dhaka.’
Article 30, prohibiting Bangladeshi citizens from accepting any title, honor, award, or medal from a foreign state without the prior approval of the President.
The amendment of Article 100 led to controversy as it violated the concept of the ‘unitary character’ of the Supreme Court as stated in Article 94 of the Constitution. Based on this, Anwar Hossain Chowdhury filed a writ petition questioning the constitutionality of the Eighth Amendment.
Facts :
Anwar Hossain Chowdhury wanted to challenge an Order of stay and needed to swear an affidavit-in-opposition. The Commissioner of Affidavit in Dhaka refused to allow his affidavit. He was informed that, under the Eighth Amendment, his Writ Petition had been transferred to the newly established Permanent Bench in Sylhet, as the case originated from that region. Feeling aggrieved by this decision, the Appellant challenged the constitutionality of the Amendment Act. The High Court Division, in its judgment on October 31, 1988, summarily dismissed the writ petition. However, recognizing the case’s significance in interpreting the Constitution, the Appellate Division granted leave to appeal, registering the case as Civil Appeal No. 42 of 1988.
Issues :
1. Whether the Eighth Amendment to the Constitution was unconstitutional or not?
Arguments :
Dr. Kamal Hossain and Syed Ishtiaq Ahmed, in favor of the appellant, argued that the Eighth Amendment violated the unitary structure of the Supreme Court as established under Article 94 and destroyed the plenary jurisdiction of the High Court Division, which had been designed to exercise judicial power over the entire Republic. By creating seven separate High Court Benches with exclusive territorial jurisdiction, the amendment weakened its authority, fragmented the judiciary and violated constitutional principles. They contended that Article 142 does not permit changes that dismantle fundamental pillars of the Constitution, including judicial independence and control over subordinate courts. The amendment effectively altered Articles 44, 101, 102, 107, 109, 110, and 111, limiting the Supreme Court’s authority and creating a structure similar to “Mini Parliaments”, which contradicts the unitary system of governance.
Furthermore, they argued that the amendment violated Article 7, which upholds the separation of powers and the principle of limited government. Unlike in India or Pakistan, Bangladesh’s Supreme Court was uniquely designed with plenary jurisdiction, making the introduction of regional High Court Divisions an unconstitutional disruption. The President’s power to assign territorial jurisdictions to these benches under Article 100(5) was also deemed an impermissible delegation of authority. Additionally, they argued that rules framed under the amendment were void since the amendment itself was unconstitutional. Overall, they maintained that the Eighth Amendment undermined the integrity and independence of the judiciary, violating the core principles of the Constitution of Bangladesh.
The Attorney General, in favor of the respondent, argued that Article 142 grants Parliament broad amending power, which is not limited by any specific constraints, including Article 7. He emphasized that the creation of permanent benches for the High Court Division did not affect its integrity or jurisdiction; it was a functional re-arrangement for expediency and convenience, allowing judges to sit in different locations while exercising the same powers. He argued that this did not violate any constitutional provisions or impact judicial independence or separation of powers. The rules made under Article 100(5) were valid and consistent with the Constitution. Additionally, he stated that the plenary jurisdiction of the High Court Division remained intact, as it could still issue writs beyond its territorial limits. The amendment did not destroy the basic structure of the Constitution, and the long title issue was consistent with previous amendments.
Decisions :
The Appellate Division ruled in favor of the appellant by majority decision.
The Court held that Parliament has the authority to amend the Constitution, but this power is limited. While Parliament’s power to amend the Constitution is recognized, it cannot destroy or alter its fundamental structure. The amendment power is a derivative power granted to Parliament by the people, and any changes must align with the core principles outlined in the preamble of the Constitution. The Court emphasized that changes made should aim at improving or enhancing the Constitution rather than altering its essential character. Therefore, the Court held that the 8th Constitutional Amendment was unconstitutional.
The court applied the “Basic Structure Doctrine” in the judgment of this case.
Relevant Legal Principle :
Basic Structure Doctrine : Some crucial parts of the constitution only belong to the people of the state like, Supremacy of the Constitution, Democracy, Republican government, Independence of Judiciary, Unitary state, Separation of powers and Fundamental rights. These structural pillars of the constitution are placed outside any change by amendatory procedure. The amended Article 100 is ultra vires as it weakens the judiciary by creating rival courts to the High Court Division under the guise of permanent Benches, granting them full jurisdiction, power, and authority.
Relevant Laws :
- The Constitution of the People’s Republic of Bangladesh
- Article : 5, 7, 30, 94, 100, 101, 102, 107, 109, 110, 111, 142
Author :
1. Nusiba Hasan Ohee
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