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ASSIGNMENT ON

ANWAR HUSSAIN VS BANGLADESH


OR 8TH AMENDMENT CASE

Submitted to:
Tahsin Khan
Lecturer
Department of Law & Justice
Southeast University

Course Code : LLBH-1223
Course Title : Constitutional Law of Bangladesh
Submitted By: Jannatul Mawa Moon
ID: 2010220300043
Batch: 22
nd


Date of Submission: 27/12/13


ANWAR HUSSAIN VS BANGLADESH
OR 8TH AMENDMENT CASE

The case of Anwar Hussain Vs Bangladesh popularly known as 8th Amendment case is a
historic judgment in the constitutional history of independence Bangladesh. This is the first
judgment whereby the Supreme Court of Bangladesh as striking down an amendment to
the constitution made by the parliament. By two Writ petition the amended Art 100 & the
notification of the Chief Justice were challenged as ultra vires. A division bench of the HCD
dismissed the petition summarily. Leave was granted by the Appellate Division by a majority of 3 to
1 striking down the 8th amendment. The principle argument of the judgment is that, the
constitution stands on certain fundamental principles which are its structural pillars which
the parliament cannot amend by its amending power for; if these pillars are dismissed or
damaged then the whole constitutional structure will be down.
Basic structures are:
1. Sovereignty belongs to the people.
2. Supremacy of the Constitution
3. Democracy.
4. Republican government.
5. Independence of Judiciary.
6 . Un i t a r y s t a t e .
7. Separat i on of powers
8. Fundament al ri ght s.

These structural pillars of the constitution stand beyond any change by amendatory process. If
by exercising the amending power these principles are curtailed more than one permanent seat
of the Supreme Court thus destroying the unitary character of the Judiciary. The amended Art 100 is
ultra vires because it has destroyed the essential limb of the judiciary by setting up rival
courts to the HCD inthe name of permanent Benches conferring full jurisdiction, power and
function of the HCD.

This amended Art 100 is inconsistent with Art 44, 94. 101 & 102 also reduced Art 108, 109, 110
& 111 of the constitution. It directly violated Art 114 this amended is illegal because there is no
provision of transfer which is essential requisite for dispensation of justice. If any provision can
be called the pole star of the constitution, then its Preamble. The impugned amendment is to
be examined on the touch stone of the preamble with or without restoring to the doctrine of basic
structure. The preamble is not only a part of the constitution; it now stands an entrenched
provision that cannot be amended by the parliament. Though this amendment it simply destroy
the objectives of rule of law which is enunciated is our preamble. The above quotations from the
judgment make it clear that the centre point, on which the majority relied to declare the
amendment illegal, which was the basic structure of the Constitution. The Doctrine of Basic
Structure is not well settled principle of the constitutional law; rather it is recent trend in and a
growing principle of constitutional jurisprudence.

The concept of basic structure of the Constitution can be found in the Sub-Continent, as Dr.
Kamal Hossain submitted in the 8th amendment case, in a decision of the Dhaka High Court.
This decision was upheld by the Pakistan Supreme Court in Fazlul Quader Chowdhury Vs Abdul
Hague. But in its Development stage in Indian jurisdiction the first formal judicial formulation of
this doctrine came out in Golak Nath. Vs State of Punjab case, 1967. Where it was decided that
parliament has nopower to amend fundamental right so as to take away any of them. The Indian
Parliament passed 24 Amendment, 1971. Which laid down that, the parliament might in the
exercise of its constituent power amend any provision of the Constitution be it of fundamental
right or of any other one. The validity of the amendment which curtailed the power of judicial
reviews was challenged in Kesavananda Vs State of Kerala case, 1973. The court by majority
overruling the Golak Naths case held that parliament had the power to amend any or all the
provision of the constitution. Following Kesavananda principle, the court in the case of Indian
Nehru Gandhi Vs Raj Narayan, 1979 held that the 39 amendment affected and destroyed certain
structure of the constitution. The scope of the application of the doctrine of basic structure again
came up for discussion in the case of Minerva Mills Ltd Vs Union of India, 1980. Thus
proposition that parliament cannot amend the Constitution so as to destroy its basic features was
again repeat and applied by the Supreme Court in Woman Rao Vs Union of India, 1980. The Doctrine of
Basic Structure successfully passed the acid test in 5cases in India. And Bangladesh court in the
8
th
Amendment case followed the Indian decision as regard the Doctrine of Basic Structure.