The Purposive Entrenchment of Constitutional Identity: Insights from Bangladesh

The judicial review of a constitutional amendment and a constitutional amendment articulating the unamendable basic structures of the Constitution in the form of eternity clauses are fraught with the possibility of debilitating a polity. The lure of making aspirational normative ideals permanent often drives the judicial articulation of constitutional identity in the form of basic structure of the Constitution. On the other hand, the legislature may also wish to articulate the same through the constitutional amendments. This paper highlights the fallouts of such judicial and legislative articulation of constitutional identity in the form of the unamendable basic structures of the Constitution. The paper spotlights Bangladesh and the manner of declaration of unconstitutionality of the 13th constitutional amendment by the appellate division of the Bangladesh Supreme Court and argues that it was a flawed decision. The paper asserts that an indigenous and ethnographic articulation of constitutional identity by the constitutional court better serves a polity than simply aping such an articulation from the neighbouring country. The paper also problematises the popular understanding in the comparative constitutional law about the need of supermajority of a Constitution Court in declaring a constitutional amendment, unconstitutional. The need of supermajority is considered suitable in well-functioning democracies only. It is argued that the simple majority of the Court declaring a constitutional amendment unconstitutional may not be desirable in not so well-functioning democracies like Bangladesh. It further argues that the declaration of the unamendable eternity clause by the 15th constitutional amendment of Bangladesh is an unconstitutional constitutional amendment as it takes away the power of judicial review in respect of the identified eternity clauses and strips the future Parliament of its democratic power to amend the Constitution in respect of the provisions of the Constitution declared permanent by the eternity clause.