Amendment Power in Bangladesh: Arguments for the Revival of Constitutional Referendum

Chowdhury, M Jashim Ali; Saha, Nirmal Kumar

Abstract

The recent constitutional trend in divided societies and relatively
unstable democracies has seen an increased use of perpetuity
clauses as a tool to foster constitutional stability. Propriety and
effectiveness of making certain part or parts of constitution totally
unamendable either by insertion of some perpetuity clauses or by
judicial articulation of perpetual norms (basic structure) has been
doubted by many. The Supreme Court of Bangladesh tested the way
of judicial articulation of certain perpetual norms as back as 1989.
The 2011 amendment to the constitution of Bangladesh has included
a very widely framed perpetuity clause and, also, a very vague
reference to the basic structure doctrine. This article considers the
fragilities of these two parallel tracks to unamendability and shows
how a median line could be drawn by installing a system of popular
referendum in the constitution amendment process. Considering the
qualitative questions over Referendum as a tool of deliberative
democracy, the paper would argue for a reformulated version of the
referendum system that was introduced in Bangladesh in 1979 but
scrapped by the amendment of 2011.

Citation

Chowdhury, M. J. A., & Saha, N. K. (2019). Amendment Power in Bangladesh: Arguments for the Revival of Constitutional Referendum. Indian Journal of Constitutional Law, 9, 38-61

• Journal Article Type: Article
• Online Publication Date: Jul 1, 2020
• Publication Date: Oct 1, 2019
• Deposit Date: Oct 31, 2022
• Journal: Indian Journal of Constitutional Law
• Print ISSN: 0975-0134
• Peer Reviewed: Peer Reviewed
• Volume: 9
• Article Number: 2
• Pages: 38-61
• Keywords: Constituent power; Amendment power; Basic structure; Unamendability; Referendum; Judicial review
• Public URL: https://hull-repository.worktribe.com/output/4109770
• Publisher URL: https://heinonline.org/HOL/P?h=hein.journals/ijcl9&i=54
• Related Public URLs: https://ijcl.nalsar.ac.in/wp-content/uploads/2020/08/9IndianJConstL38_ChowdhurySaha.pdf