Introduction

This chapter discusses the judicial role in politics in what fairly could be called an “unstable” democracy: Bangladesh. It addresses the issues of legitimacy and pragmatism of judicial intervention into politics by not merely interpreting the judicial decisions on legal and technical grounds but also by seeing the judiciary as a site of politics and power. Politics, for this purpose, is seen as mega-political issues that, clad in “constitutional attire,” are brought before or foisted on the judiciary for adjudication. After this introduction, the chapter provides a conceptual description of the phenomenon of judicialization of politics, followed by a brief narrative of instances of judicial intervention in minor politics. It then proceeds to analyze judicial decisions that invalidated constitutional amendments, especially examining the Supreme Court's decision that invalidated the Thirteenth Amendment of the constitution, which introduced the caretaker government (CTG) system.

The theme of this book is the study of the roles of law and politics in managing the tensions arising from and mitigating the factors liable for unstable constitutionalism in South Asia. As the editors of this volume stated, unstable constitutionalism refers to a political scenario in which all participants in national politics appear to be sincerely committed to the idea of constitutionalism or the rule of law. However, they struggle to institutionalize a stable structure, including political stability that would promote and practice a form of constitutionalism appropriate to their nation.Footnote ²

Seen in light of this conceptualization, Bangladeshi constitutionalism provides an example of unstable constitutionalism. For almost half of the period of forty-four-plus years of its independent existence, Bangladesh has been ruled by military–autocratic and nearly autocratic regimes. There was no political government for sixteen years from 1975 to 1990, in the pre-transition era (i.e., pre-1991), and for another two years from 2007 to 2008, when the military, in disguise, ran the government amid a prolonged “Emergency.” Following its independence in 1971, Bangladesh formally adopted a parliamentary form of democracy through its first national election in March 1973, which then faced a tragic demise the following year. In 1974,Footnote ³ an Emergency was imposed and an authoritarian, one-party government was established through the controversial Fourth Amendment of the constitution.Footnote ⁴ That was the beginning of “paternalism” and the “absence of constitutionalism and the rule of law” in the governance of the state.Footnote ⁵

Soon after the abdication of constitutionalism by the people's representatives, the military intervened in 1975 and began a regime of autocracy and unconstitutionalism. This lingered until the end of 1990, when a spontaneous public upsurge for democracyFootnote ⁶ eventually resulted in a new beginning of parliamentary democracy.Footnote ⁷ In 1991, a general election was held under a consensus-driven mechanism under the stewardship of the then-Chief Justice of Bangladesh, and multiparty democracy was restored.

The restoration of democracy in 1991 inspired hope that it would continue, but the promise soon appeared to be hollow. At the end of regime of the first post-autocracy government of the Bangladesh Nationalist Party (BNP), a major political crisis concerning the mode of the next general elections was already looming. The opposition, the Bangladesh Awami League (AL), demanded a neutral, non-party CTG for holding a free and fair election. After a constitutional crisis of several months, the CTG, a special type of election-time government system, was introduced in 1996.Footnote ⁸

The next two general elections, in 1996 and 2001, were held under the CTG administration. However, a few months before the scheduled 2007 elections, the then-ruling party (i.e., the BNP) adulterated the CTG system by increasing the retirement age of Supreme Court justices to sixty-seven, with a particular chief justice in mind for the CTG head.Footnote ⁹ The opposition (i.e., the AL) announced that it would not participate in the election under that particular justice's leadership and reacted violently. Consequently, another irreconcilable political crisis ensued, resulting in a State of Emergency being declared in early 2007; the elections were postponed and a military-backed civilian CTG was installed. The 2007 CTG remained in power for two years rather than three months; the next election was in December 2008 in which the AL won.

Although the 2009 AL government did not publicly announce so, it likely had a plan to eliminate the CTG system, which by then had become not only controversial but also had revealed generic defects. In early 2011, the Supreme Court's Appellate Division (in a case analyzed later in this chapter) declared the CTG system unconstitutional for being antidemocratic. Soon after the judgment, the parliament amended the constitution to abolish the CTG system. The new amendment triggered another crisis. The opposition parties demanded that unless the CTG system was reintroduced, they would not participate in elections. The ruling party continued to assert that every election would be held under the incumbent government, as in other democracies. It is not surprisingly, therefore, that the third and so far the longest-running constitutional crisis in post-1990 Bangladesh ensued. Amid the boycott by the opposition parties, the elections of the tenth parliament were held on January 5, 2014, and were marked by chaos, terrorism, and extremely low voter turnout.

The preceding narrative of the trajectory of Bangladesh's constitutional history illustrates how constitutionalism has never become stable. The lack of a permanent structure for holding free and fair elections has been a major source of instability. Other than the first general elections in 1973, other elections that brought into power democratic governments were preceded by instability and uncertainty. Beyond the elections, substantive factors of constitutionalism also remained unconsolidated. The Constitution of Bangladesh (the constitution)Footnote ¹⁰ proclaims democracy as the mode of governance, emphatically declares the supremacy of the constitution, mandates the holding of free and fair periodic elections, ensures the separation of powers and judicial review of laws and state actions, guarantees judicial independence, and enumerates civil rights.Footnote ¹¹ Despite these ideals of constitutionalism, however, the political institutions in Bangladesh remain weak, which is evident, for example, in the existence of a poorly functioning parliamentFootnote ¹² dominated by an omnipotent, self-serving executive.

There is an undeniable wider gap than often is appreciated in the literature between normative formulations of the constitution and the social and political realities in Bangladesh. Although “the law” and “politics” should have been the ideal instruments to contain the sources of instability, law and politics in Bangladesh sometimes appear to be the sources of unstable constitutionalism. On the one hand, military interventions and the military-cum-civil governments were a major extra-constitutional source of unstable constitutionalism. On the other hand, “politics” during elected governments also turned out to be a destabilizing factor. In Bangladesh, several “democratic” governments have on many occasions used the constitution or the law for selfish interests, thereby twisting the course of constitutionalism. In this context, the judiciary often has found opportunities to respond against sources of unstable constitutionalism. It is through this process that the scenario of judicial engagement with politics emerged, a phenomenon that is better called judicialization of politics that, depending on the surrounding support structure, has the potential for either mitigating or aggravating political impasses or disputes.

Based on a critical assessment of consequences of unpragmatic judicial intervention into politics, this chapter develops a framework of judicial engagement with “hard” constitutional issues entwined with politics. It argues that – with effective strategies and judicial craftsmanship combined with constitutional wisdom – a Constitutional Court can stabilize constitutionalism in a country in which sources of instability often are litigated. Derived from this, another argument is that unpragmatic judicial intervention into mega-politics or structural-policy issues well may add to the existing sources of unstable constitutionalism.

Judicialization of Politics: Concept and Context

Judicial engagement in the resolution or aggravation of political disputes has become a spectacular global reality. The judicial role in politics in any given society, however, has been a subject of long-standing debate at the core of which lies the question of whether the judiciary can legitimately intervene to resolve political questions or controversies. Both scholars and judges have endorsedFootnote ¹³ and questioned the appropriateness of judicial intervention in politics. In the context of the escalating trend of political issues being dragged to court for judicial answers,Footnote ¹⁴ judges often effectively exercise “political power”Footnote ¹⁵ or “supervise” the political processFootnote ¹⁶ under their claim that they only interpret the law and do not resolve political disputes. This phenomenon of judicial adjudicative engagement with political or politically loaded constitutional issues has become known as judicialization of politics.

Judicialization of politics seems to be a growing feature in many constitutional systems of the global North and South.Footnote ¹⁷ In South Asia, accordingly, judicialization of politics has achieved a significant place within the higher judiciaries of Bangladesh, India,Footnote ¹⁸ and PakistanFootnote ¹⁹ – although in differing degrees and types. Despite “increasing judicialization” of politics in India, the Indian judiciary has maintained a balance between intervention and abstention regarding political questions.Footnote ²⁰ In Pakistan, by contrast, the recent history of judicial activity has been one of overjudicialization of politics and, at times, a complete judicial usurpation of other organs’ powers – and, therefore, a threat to democracy.Footnote ²¹ In Bangladesh, judicialization of politics recently embraced the phase of unprincipled and unpragmatic judicial intrusion into “mega-politics.”Footnote ²²

As the nature and impact of judicialization of politics in Bangladesh are examined, it is pertinent to highlight the context in which the analyses are developed. In general, judicialization of politics refers to judicial policy makingFootnote ²³ such as the Supreme Court's decision that any particular group of people within the country is entitled to receive citizenship or that the delimitation of any particular electoral constituency is or is not legal. In the modern sense of the term, it means judicial engagement with political issues such as the question about whether a prime minister accused of being partisan in appointing a security chief is disqualified for the office.Footnote ²⁴

The breadth and the nature of judicialization of politics were the subject of a 2013 study titled Consequential Courts.Footnote ²⁵ Essays in this study examined the judicial roles in the governance and politics of several states in the context of five different types of political-conflict arenas. As the essays showed, judicial interventions occur with regard to (1) disputes between political incumbents and challengers, (2) disputes between or among organs of the state about “who governs,” (3) conflicts about government stasis and maladministration, (4) cultural and religious cleavages, and (5) disputes about rights and equality.Footnote ²⁶

The following discussion principally captures the first two arenas of conflict and controversy. The concept of judicialization of politics raises these questions: Do judges really adjudicate political questions? Are constitutional issues that arise from political controversies legal questions? Given the normative relationship between politics and constitutional law, drawing a clear line between the “political” and the “legal” often is a complex exercise. In difficult cases, judges indeed make “political decisions” in the sense that they have consequences for political controversies.Footnote ²⁷ Judges’ treading into political controversies or their making of policy suggestions may be functionally inescapable in a given case and in a given context of specific local conditions.Footnote ²⁸ Accordingly, automatic application of the “political-question doctrine” in the sense of not allowing the judges any authority to deal with policies does not meet the purposes of the separation theory in its modern version.Footnote ²⁹ Some measure of judicial role in the national politics of any country, in fact, is inevitable, and constitutional adjudication is certain to produce political implications. Nevertheless, there are certain controversies that – although they arise in the background of conflicting constitutional claims made by opposing political parties – belong squarely to “mega” or “pure” politics, requiring pragmatic deference rather than adjudication by courts.Footnote ³⁰

An Overview of Judicial Engagement with Political Issues in Bangladesh

This section surveys the way in which the Bangladeshi senior judiciary addressed political issues – that is, the way in which it drew the line between law and politics or helped them to interact.

Judicial engagement with policy matters in Bangladesh is not uncommon. The Supreme Court, however, often shies away from recognizing its policy role. On several occasions, including when addressing difficult issues, it has claimed that it would “go by the law as it is”Footnote ³¹ and would say nothing in policy matters,Footnote ³² stressing that what it does in any case is an interpretation of the constitution, not making of the law. Despite this claim, however, Bangladesh's Supreme Court – from the beginning of its history – expressed policy preferences or exercised political power when adjudicating constitutional petitions. This tradition of judicialization of politics, which has not yet been thoroughly studied in Bangladesh, can be traced back to the political environment of unstable constitutionalism in early Pakistan, when the courts were frequently relied on for answers to political crises.

During the Pakistani regime, preceding Bangladesh's independence, “the law” and the constitution often were used by politicians and rulers to override political opposition. In the early history of Pakistan, the legality of the dissolution of the Constituent Assembly a few months before the country's constitution-framing was completed – and similar political disputes – was litigated. In Maulvi Tamizuddin Khan v. Federation of Pakistan (1955), the High Court held in favor of legislative supremacy by declaring unlawful the Governor-General'sdissolution of the Constituent Assembly.Footnote ³³ However, the Federal Court on appeal vacated the judgment on a technical ground that the law under which the High Court issued a writ against the act of the Governor-General had not been validly enacted because the Governor-General withheld his assent.Footnote ³⁴ In 1966, a dispute arising from the resignation of a member of the National Assembly, his later withdrawal thereof, and the ruling by the Speaker of the Assembly that the resignation became effective was settled by the Pakistani Supreme Court on constitutional procedural grounds.Footnote ³⁵ Similarly, in a famous decision in the 1960s, the Supreme Court ruled on the inability of the president's “constitutional” power to amend the law in a way that contradicts the structure of the constitution.Footnote ³⁶

In the post-independence regime, the Supreme Court of Bangladesh generally pursued a broader approach to the justiciability of issues with political ramifications, a trend that began during the formative years of the Court. For example, in an abstract review petitionFootnote ³⁷ challenging the constitutionality of the Delhi–Dhaka Treaty of May 16, 1974, involving the exchange of territories between Bangladesh and India, the Appellate Division exercised its jurisdiction by rejecting the argument of non-justiciability of an “act of state” (i.e., the conclusion of a treaty).Footnote ³⁸ Although it ultimately refused to issue the remedy, the Court advised that the treaty could not be implemented without first amending the constitutional definition of “the territory of the Republic.” Arguably, this case showed how strategic judicial intervention into political issues through legitimizing government actions can be made. By exercising its authority over an abstract review petition, the Court in this case also set the grounds for judicialization of politics in constitutional challenges in the future.

Judicialization of politics in Bangladesh, however, did not flourish immediately after independence. Rather, the growth of the phenomenon has been concomitant with the oscillation of democratic stability in Bangladesh.Footnote ³⁹ Except for the first major instance of judicial activism in 1989, when the Supreme Court established the basic-structure doctrine (BSD),Footnote ⁴⁰ judicialization of politics has been a post-autocracy (i.e., post-1990) development.

Two important drivers of post-1990 “judicialization” in Bangladesh are the politicians and victims of politics and the public-interest litigation (PIL). I claim elsewhere that the emergence of a new constitutional environment after the fall of the autocratic regime in 1990 meant that the people renewed their faith in constitutionalism.Footnote ⁴¹ It also is in this period that the PIL became entrenched and judicial constitutional activism began to develop.Footnote ⁴² Against such a backdrop, any attempt – real or purported – to circumvent constitutionalism was met with constitutional petitions either by politicians or individual or institutional public-interest challengers (i.e., cause-litigants). In particular, since the late 1990s, PIL has become the primary vehicle for judicialization of politics as well as for the politicization of the law and the constitution.Footnote ⁴³ More recently, the volume and scope of constitutionalism-inspired PIL cases have increased significantly, with the purported intention of checking myriad forms of unconstitutionalism,Footnote ⁴⁴ whereas the post-Emergency (i.e., since 2009) judiciary is increasingly involved in policy-setting exercises with renewed enthusiasm.Footnote ⁴⁵

In the context of an increasing number of political disputes being litigated, the Supreme Court adopted an engagement approach to interventions, refusing to readily accept the doctrine of political questionsFootnote ⁴⁶ but remaining at times essentially passive on complex political issues, such as in the case of legality of hartal (i.e., political strikes).Footnote ⁴⁷ In dealing with politically sensitive issues, the Court has sought to retain its authority by cautiously avoiding any severe conflict with other constitutional organs.Footnote ⁴⁸ More specifically, in the early 1990s, it developed a type of guiding norm with regard to constitutional cases involving political issues, which is the rule of “self-constraint”Footnote ⁴⁹ – although to what extent the guidance was followed later is a different question.

Regarding the issue of judicialization of politics, the post-1990 Supreme Court's interventions were through the supervision of the political process, often adjudicating the disputes relating to fairness of elections and voting rights, and the enforcement of wider principles of constitutionalism, such as the representation of the people in governance or judicial independence.Footnote ⁵⁰ For example, in an important case involving the question of public representation in democracy, the Appellate Division refused to strike down a law removing a local-government tier but enjoined the government to hold elections of the existing local bodies within six months of their order and “keeping in view the provision for special representation [of women].”Footnote ⁵¹

Judicial involvement with complex political issues began to be apparent in the mid-1990s. In a 1994 case, Anwar Hossain Khan v. Speaker of Sangsad,Footnote ⁵² the issue of the legality of boycotting of parliament by members (MPs) of opposition parties, which they considered a bargaining chip to realize the demand for the CTG, was adjudicated by the High Court Division (HCD). The Court not only issued an injunction enjoining the boycotting MPs to join the House, it also entangled itself in “pure politics’’Footnote ⁵³ by commenting, ex gratia, that the demand for the CTG was not supported by the constitution.Footnote ⁵⁴ On appeal, however, the Appellate Division took a pragmatic course, overruling the decision of the HCD. Disposing of the appeal almost thirteen years after its lodgement in early 1995, the Appellate Division held that an order of mandamus would not issue against unwilling members enjoining them to join the parliament. The Court also virtually held that internal matters of the parliament were beyond judicial scrutiny and that a judicial order, which would be inexecutable, would not solve that particular (political) problem.Footnote ⁵⁵

The political crisis that was sought to be resolved by the HCD in Anwar Hossain Khan did not end with its order. Pending the hearing of the case, the opposition members continued to boycott parliament for more than ninety consecutive days and claimed that their seats became vacant according to the constitution.Footnote ⁵⁶ On the contrary, the argument of the political incumbent was that “boycott” was not “absence” from parliament so as to trigger the law relating to the vacancy of seats. The Court did not declare vacant the seats of boycotting MPs either. In less than three weeks after the Court's order, the opposition MPs resigned en masse on December 28, 1994. The Speaker of the parliament ruled that the resignations were ineffective. Eventually, the president sent a reference to the Supreme Court seeking its advice on whether the boycotting MPs’ seats would have become vacant for “absence” from parliament for ninety consecutive days. In the background of escalating political instability, the nation was expecting the apex court to play its due role vis-à-vis the political impasse, whereas the leading lawyers advised the Court not to step into politics. The Appellate Division, although it decided to answer the reference, was anxious to stay “aloof from political controversies”Footnote ⁵⁷ – but not at the cost of its responsibility to resolve what it considered to be a legal question. Speaking for the Court, Chief Justice Afzal offered the following reasoning:

Of all litigated issues with political undercurrents, issues related to fairness in the electoral processes are the most frequent appearances. On different occasions, the Court adjudicated the issues of the legality of delimitation of constituencies and of making a fresh voters’ list; the constitutional appropriateness of appointing a Supreme Court judge as the Chief Election CommissionerFootnote ⁵⁹; and similar issues, such as the legality of a “selective” local government.Footnote ⁶⁰ In 2006, for example, in the wake of a violent political crisis over the issue of a neutral CTG, the HCD ruled that the voters’ lists drawn up for the upcoming 2007 election (which, however, was not held in 2007) were invalid, and ordered the Election Commission to draw up fresh electoral rolls on the basis of the 2001 roll.Footnote ⁶¹ The case was filed by opposition leaders, and the judgment was later affirmed by the Appellate Division. The dispute over the electoral rolls did not end there. New electoral rolls were drawn up, which also were challenged in the Court.Footnote ⁶² The 2007 elections were postponed, and a State of Emergency was declared on January 10, 2007. The political crisis that ensued worsened when the HCD in late January ruled that “elections could not be held for at least three months or until the voter-registration process had been completely overhauled”.Footnote ⁶³

During the two-year-long State of Emergency (2007–2008), when judicial power was restrained by the Emergency laws, judicial activity to enforce democratic principles was a mixture of abstention and assertion. The Appellate Division of the Supreme Court remained largely hands-off vis-à-vis the issues of breaches of constitutionalism, whereas the HCD sought to assert its authority.Footnote ⁶⁴ Although the politicians – many of whom remained incarcerated on corruption charges – did not choose to use the law to challenge the new extra-political regime, civil-society actors turned to the courts to strategically use the law to challenge the then-external source of “unstable constitutionalism” – that is, the pseudo-military regime of 2007–2008. In a high-profile PIL case, Advocate Sultana Kamal and others v. Bangladesh (2008),Footnote ⁶⁵ the constitutionality of certain provisions of the Emergency laws,Footnote ⁶⁶ but not the Emergency itself, was challenged. A few days before the State of Emergency was lifted in late 2008, the HCD struck down some provisions of the impugned laws on the grounds that they unconstitutionally barred judicial review of executive orders under any Emergency law.Footnote ⁶⁷ The Court viewed the provisions under challenge as an affront to the principles of justice and the due process of law, observing that the State of Emergency cannot continue for an indefinite period under the constitution. On appeal, however, the Appellate Division by an interim order stayed the efficacy of the HCD's decision. Before the HCD's decision in Advocate Sultana Kamal, the Court accepted another PIL, M. Saleem Ullah and others v. Bangladesh (2008),Footnote ⁶⁸ which challenged the constitutionality of the 2007 Emergency. Issuing a rule nisi, the Court directed the Emergency government to clarify how and when it planned to handover powers to elected representatives and observed that the promised transfer of power must be transparent.Footnote ⁶⁹

When the post-Emergency AL government took charge in 2009, the issue of the legality of the Jamaat-e-Islami Bangladesh (JIB), the most prominent right-wing, religion-based political party, became a major political issue in two contexts: (1) the accusation that the party and its leaders were responsible for war crimes during Bangladesh's liberation war in 1971; and (2) the electoral pledge of the AL that, if voted to power, it would try the war criminals. In 2009, a leader of a little-known religion-based political party filed with the HCD a PIL challenging the registration of JIB with the Election Commission.Footnote ⁷⁰ When the next general election approached, the Court in a 2013 split decision (two to one) declared the JIB's registration illegal.Footnote ⁷¹

However, two weeks before the general election of January 5, 2014, a vice chairman of a political party (i.e., the Jatiya Party) – which, after the submission of candidacies, announced that it would not run in the elections – challenged the constitutionality of a provision in the main electoral law that allows “uncontested” winning of any lone candidate for a parliamentary seat.Footnote ⁷² Following the 2014 parliamentary elections, the Court, on hearing the parties, refused to strike down the impugned law. In the words of the Court, given that 153 members of parliament (of 300) had already been elected “uncontested” in the tenth parliament, it saw no way to declare the law unconstitutional.

Now I turn to an instance of judicial intervention into politics of a different genre involving the Chittagong Hill Tracts Peace Accord of 1997 that was entered into between the government and a representative organization of indigenous communities in the Chittagong Hill Tracts (CHT) with a view to establishing peace in the region. The organization, called the Parbatya Chattagram Jana Samhati Samiti (PCJSS),Footnote ⁷³ had long been pursuing an armed belligerence to establish indigenous people's right over the lands as well as their share in the governance of affairs relating to the CHT. The CHT Peace Accord of 1997 prompted a number of legislative acts in 1998, one of which established a special type of local government in that region: the Chittagong Hill Tracts Regional Council (CHTRC).Footnote ⁷⁴ A Bangalee settler of the region challenged the constitutionality of the Peace Accord and the Regional Council in 2000.Footnote ⁷⁵

As the issues surrounding this case unfolded, it became apparent that behind the private litigant was a political party, the JIB. When the constitutional petition of 2000 was awaiting a hearing, another challenge of the legality of the CHT Peace Accord was brought by a lawyer affiliated with that party in 2007, when a military-backed CTG was in power.Footnote ⁷⁶

Conjoining the two petitions, the HCD in a 2010 decisionFootnote ⁷⁷ declared the CHTRC unconstitutional for violating the state's unitary character, as well as not being a local government body created within the constitution's mandate,Footnote ⁷⁸ and also struck down certain statutory provisions as discriminatory against citizens other than aboriginals in the CHT. The Court, however, refused to invalidate the CHT Peace Accord of 1997 and was cognizant of the limitations of its “authority, expertise, and ability” to resolve an admixture of social, economic, and political issues.Footnote ⁷⁹ The type of intervention that ultimately was made in these two cases, as may be gleaned from its reasoning, was seen by the Court as a necessary intervention to make the ongoing peace process ultimately fruitful.Footnote ⁸⁰

The conclusion of the 1997 Peace Accord was a high-level policy issue and the Accord, despite the fact that its terms were not being satisfactorily complied with by the government, was a notable success in convincing the rebels to agree to surrender arms and establish peace. The CHTRC was one of two new institutions that were established in pursuance of the Peace Accord objectives. This not only forged an innovation in the style of aboriginal people's participation in the CHT-region but also extended to them a tacit recognition of their cultural and separate political identity. From the normative perspective of inclusive constitutionalism and in light of historical–political contexts that are specific to the CHT issue, it seems that the Court failed to properly appreciate the political environment that led to the creation of a special body like the CHTRC and made up the background of the two cases. Questions remain as to whether the Court took the “devolution” of power to the CHTRC as so radical an affront to the unitary character of the country.Footnote ⁸¹

Judicial Annulment of Constitutional Amendments

This section takes a critical look at judicial engagement with mega-political decisions in Bangladesh through the application of the BSD, with special reference to the Supreme Court's annulment of the Thirteenth Amendment of the constitution. The BSD refers to the idea that certain fundamental cores of any given constitution may never be altered by parliament. This is underpinned by the logic that parliament has only a limited amending power and lacks the “constituent power”Footnote ⁸² that belongs only to the people.Footnote ⁸³ As such, the judiciary, the organ that is more insulated from politics, should have the legitimate power to “declare” unlawful (rather than to unmake) any constitutional amendment that destroys the basic structure of the constitution.

The Court's power to annul constitutional amendments is an intensely debated phenomenon.Footnote ⁸⁴ In South Asia, however, this power of the Constitutional Courts appears as a unique tool with potential to mitigate forces of unstable constitutionalism.Footnote ⁸⁵ As discussed in this section, the BSD, particularly in Bangladesh, has been used recently as a vehicle for overjudicialization of politics.

Before delving into the judicial invalidation of the Thirteenth Amendment, it is pertinent to briefly survey the judicial annulment of other amendments. The Appellate Division first established the BSD in a landmark decision in Anwar Hossain Chowdhury v. Bangladesh (1989)Footnote ⁸⁶ by invalidating the Eighth Amendment that diffused the Supreme Court's HCD into several regional benches.Footnote ⁸⁷ The majority Court (three to one) reasoned that the diffusion of one division of the Supreme Court was against the unitary character of the Republic, a feature of the basic structure of the constitution.

The Constitution (Eighth Amendment) Act of 1988 was based on several martial-law regulations issued in the early 1980s by the then-military ruler (1982–1990) diffusing the HCD into seven permanent benches. Following the withdrawal of martial law and the revival of the constitution in 1986, the change was inserted into the constitution by amending the original Article 100. A pliable parliament (i.e., the third parliament) that was ingeniously constituted through a sham election when the military ruler was still the president of the countryFootnote ⁸⁸ passed the amending act.Footnote ⁸⁹ The government claimed that the establishment of permanent branches of the HCD in regional cities was necessary to enable the people to have access to the country's apex court. The autocratic government, however, allegedly sought to make the top judges subservient in the name of decentralizing the Supreme Court for the benefit of the people, by making them transferrable from one place to another. As such, the Eighth Amendment cannot, on substantive grounds, be called an amendment by a parliament in the true sense of the term. The entire legal profession had been demonstrating for years against the legal change that was unduly made by the autocratic government. Furthermore, by the time the Court declared the Eighth Amendment Act addressing the HCD's diffusion void, the political environment was gradually becoming congenial for a democratic transition, making political retaliations on the Court unlikely to be fierce.

Following entrenchment of the BSD in Bangladesh in 1989,Footnote ⁹⁰ the Supreme Court in 2010 and 2011 declared unconstitutional three more constitutional amendments: the Fifth, Seventh, and Thirteenth Amendments.Footnote ⁹¹

In the case of Bangladesh Italian Marble Works Ltd. v. Bangladesh (2005),Footnote ⁹² which has become known as the Fifth Amendment Case, the HCD declared unconstitutional the Constitution (Fifth Amendment) Act of 1979,Footnote ⁹³ which gave constitutional protection to the first martial-law regime (i.e., August 20, 1975, to April 9, 1979) and its actions and laws.Footnote ⁹⁴ As in the case of the Eighth and Seventh Amendments, the election of the third parliament that enacted the Fifth Amendment was through a controversial process overseen by the president-cum-martial-law administrator. The Supreme Court held that the changes brought into the constitution were against several elements of its basic structure and that martial law, being no law at all, lacked authority to amend the constitution.Footnote ⁹⁵ The political party, the founder of which promulgated the martial law now declared void, reacted strategically against the judgment, and the party's secretary appealed the HCD decision. The Appellate Division, by a unanimous 2010 decision,Footnote ⁹⁶ generally endorsed the HCD and made a policy suggestion that parliament may make law criminalizing coups or extra-constitutional usurpations of power.Footnote ⁹⁷ Being pronounced many years after the withdrawal of the first martial law, the Court's judgment in the Fifth Amendment Case was first thought to be merely academic. It later became clear that the decision was consequential because it validated certain constitutional changes brought by the Fifth Amendment while striking down most changes. Despite weaknesses and ambiguity in the Court's reasoning with respect to the “fruits of a poisonous tree,” the decision seems to be a bold assertion against unconstitutional usurpation of state powers. The 2005 decision of the HCD arguably acted as a deterrent to a full-blown military takeover during or before the 2007 Emergency.

Inspired by the Fifth Amendment decision, the HCD in Siddique Ahmed v. Bangladesh (2011)Footnote ⁹⁸ declared unconstitutional the Constitution (Seventh Amendment) Act of 1986Footnote ⁹⁹ that legitimized the second martial-law regime (i.e., March 24, 1982, to November 11, 1986),Footnote ¹⁰⁰ although it refused to sustain the petitioner's claim that his criminal conviction during the military regime was illegal. The political party whose founding leader promulgated the second martial law was not assertive in reacting to the decision; however, the petitioner, still dissatisfied, appealed to the Appellate Division, which unanimously endorsed the HCD's decision.Footnote ¹⁰¹

Invalidation of the Thirteenth Amendment: The Case of Over-Judicialization

In the most recent BSD case, Abdul Mannan Khan v. Bangladesh (2011),Footnote ¹⁰² the Appellate Division by a four-to-three decision declared (prospectively) unlawful the Constitution (Thirteenth Amendment) Act of 1996Footnote ¹⁰³ that instituted the CTG system, which would take over state power during the interregnum between two elected governments (i.e., ninety days) to conduct and oversee national elections.Footnote ¹⁰⁴ The Court reasoned that the CTG system, being an unelected government and the retired chief justices having been involved in its governance, is against “democracy” and “judicial independence,” two elements of the basic structure of the constitution.

Abdul Mannan Khan was an appeal against the HCD's decision in M. Saleem Ullah v. Bangladesh (2004),Footnote ¹⁰⁵ which was filed as a PIL by a lawyer on the grounds that the CTG was incompatible with the constitution's basic structures. Although the Court did not question the genuineness of the petitioner's “public-interest” grievance, it rejected his argument and found the CTG system to rather have boosted democracy, a basic constitutional feature, by helping it to consolidate. In regard to the engagement of a retired chief justice as head of the CTG, the Court preferred not to interfere with the political wisdom, leaving it to the parliament to find another option. Long before this decision, the legality of the CTG was challenged in another abstract review petition, which the HCD rejected summarily because it found “no unconstitutional action” on the part of the “legislature” in enacting the Thirteenth Amendment to provide for the CTG for a “limited period.”Footnote ¹⁰⁶

These rationales of the HCD, underpinned by an approach of judicial restraint with regard to structural political and policy issues, were sidelined by the Appellate Division with not as cogent reasoning. As discussed later in this section, the plurality in the Appellate Division applied the BSD quite mundanely and not in light of the local context.

It is not surprising that the Appellate Division's Thirteenth Amendment decision produced serious political implications, as discussed previously. The decision effectively sharpened the ongoing political crisis over the CTG issue. Immediately after the AL assumed power following the 2009 elections, the ruling party showed signs that it would discard the CTG system. Following the Court's “short order” on May 10, 2011, the government, which had an absolute majority in parliament, claimed that it would implement the judgment. The parliament, then, rushed to enact the Fifteenth AmendmentFootnote ¹⁰⁷ within two months of the Court's preliminary order, to eliminate the system of non-party CTG without the concurrence of the opposition party (i.e., the BNP).Footnote ¹⁰⁸ Major opposition parties began violent protests to a degree never seen before to press their demand for the restoration of the CTG system, and they boycotted the January 2014 elections. Ironically, the unnatural exclusion of the CTG system on the plea that it is “undemocratic” resulted in a type of distorted democracy. The election of the tenth parliament was virtually a one-party election (with the AL once again in power) with no opposition in parliament to challenge the government and therefore was deficient in legitimacy.Footnote ¹⁰⁹ The major political party (i.e., the BNP) that is left out of parliament is now demanding an interim, all-party election under a neutral administration, and it is likely to stage further protests and movements. As such, the crisis that put the nation into a deep abyss before the 2014 elections is not yet over, putting in limbo the certainty about how and when the next election will be held.

Did the Appellate Division consider these political consequences when it invalidated the CTG system? Should a Constitutional Court be concerned about consequences of its decisions? It seems that the Appellate Division was not entirely unaware of the consequences of its decision to void the CTG system. In its short order, the Court made a policy suggestion, deficient in reasoning, that “[t]he election of the Tenth and Eleventh Parliament may be held under the provision of the…Thirteenth Amendment” on the grounds of state necessity and public safety.Footnote ¹¹⁰ This raises the question of why it was so urgent to adjudicate on the legality of the CTG system in 2011 when the Court was suspicious of the break in public safety if the system were negated.

To understand the judicialization of politics in the Thirteenth Amendment Case, the decision-making process must be reviewed. The leading judge writing the judgment for the court was Chief Justice A. B. M. Kahirul Haque. The appeal against the HCD's judgment in M. Saleem Ullah, which was pending in the Appellate Division since 2005, was heard after Justice Haque took office as chief justice.Footnote ¹¹¹ Furthermore, the judgment concerning such an important structural issue was handed down by issuing a one-page “short order” on May 10, 2011, only eight days before Justice Haque's retirement.Footnote ¹¹² All but two of the eight amici curiae either were in favor of a “restrained” Court over the constitutionality issue of CTG or asked the Court to see it as constitutional, advice on which it chose not to act. It is important to note that the full judgment of the Appellate Division was written more than a year after the interim judgment in 2011, with Justice Haque writing it after his retirement.Footnote ¹¹³ In the meantime, the Fifteenth Amendment abolishing the CTG system was enacted, and the plurality Court's detailed judgment is alleged to be conforming to changes brought about through the amendment.

It seems that the Appellate Division in the Thirteenth Amendment Case misapplied the BSD.Footnote ¹¹⁴ In Western jurisprudence, the BSD is widely held as contrary to democratic norms. Yet, the BSD has become entrenched in South Asia as a tool for preserving the “identity” of the state – that is, to protect the independence constitutions vis-à-vis pressure of change or onslaughts from communal politics, political revolutions, and military coups.Footnote ¹¹⁵ The critics“ apprehension about judicial excessiveness with regard to the BSD, however, is not entirely baseless or nebulous. The Court indeed may marginalize essential political wisdom by invalidating any given constitutional amendment such as the Thirteenth Amendment in Bangladesh.Footnote ¹¹⁶ In a BSD case, therefore, the more fundamental issue of whether it should invoke the doctrine to strike down any constitutional amendment should be decided essentially by applying local constitutional standards.

The BSD's inappropriate application resulted from a misreading of the constitution and improper exclusion of specificities of local politics characterized by, among other things, distrust among politicians with regard to fair play in elections.Footnote ¹¹⁷ When looking at the contours of “democracy” as a basic feature of the constitution, the Court interpreted the constitution as a mere text and assessed “democracy” from the Western world perspective, where elections have not been as problematic as in Bangladesh. In doing so, it excluded from consideration social and political ramifications of the neutral interim electoral system that it nullified.Footnote ¹¹⁸ Seen through the lens of Western-inspired legal and political theories, the CTG system is an antithesis to democracy. Bangladesh deliberately adopted this apparently undemocratic system and as an exception for the greater sake of democracy itself. Presumably, it is a temporary measure, but the question of when to replace it should be for the people to decide.

Every constitutional amendment that the Supreme Court of Bangladesh has addressed so far involved a higher-level policy issue. The Thirteenth Amendment, however, involved not only a policy issue but also became the cause of a complex political crisis over the national general election. The political context, as well as the legitimacy of the Thirteenth Amendment, is entirely different than other constitutional amendments. The majority Court in this case failed to appreciate the Thirteenth Amendment in light of other characteristically divergent amendments declared unconstitutional so far: the Eighth, Fifth, and Seventh Amendments. In the Fifth and Seventh Amendments, parliament ratified constitutional changes brought forth through martial law that it could not enact for itself. In the Eighth Amendment, as often is argued, the decentralization of the HCD of the Supreme Court breached the “unitary character” of the state. The Thirteenth Amendment resembles none of them but rather evolved from a political consensus of that time (i.e., 1996).

The minority judges in the Thirteenth Amendment Case, by contrast, preferred not to interfere with the political wisdom over the highly complex structural issue of election-time government. In his powerful dissent, Justice Muhammad Imman Ali reasoned that “the Thirteenth Amendment was neither illegal nor ultra vires the Constitution and does not destroy any basic structures of the Constitution.”Footnote ¹¹⁹ For Justice Ali, the republican and democratic character of the state was no more infringed on or after this amendment than it had been before the non-party CTG system was introduced.Footnote ¹²⁰ He further argued that in the context of the 1996 political quagmire, the people chose the CTG system as a solution. Accordingly, for the current crisis, the solution must come from the representatives of the people and should be worked out through a dialogue in parliament.Footnote ¹²¹ The minority judges refused to link the question of constitutionality of the CTG with the claim that the system did not work in 2007 and that it had generic defects. As Justice Ali explained, the non-functionality of the system ensued because the then-president misapplied the provisions of the Thirteenth Amendment. Therefore, the task of replacing it with a better option should belong to the elected representatives.

Judicial Balancing and Strategic Intervention

There is no denying that courts around the world, including the top courts in Bangladesh, increasingly are playing their role in politics or in the establishment and maintenance of democratic governments.Footnote ¹²² Judicial decisions, however, to resolve political crises are “difficult and easily backfire.”Footnote ¹²³ Unpragmatic and locally uncontextual judicial intervention may further deteriorate political instability. In the Thirteenth Amendment Case, for example, the Appellate Division of the Supreme Court became a source of instability.Footnote ¹²⁴ Although strategic judicial interventions may produce successful solutions for political turmoil or politico–constitutional issues, most scholars and commentators converge in their opinions that judicial interventions in politics almost “always run the risk of politicization.”Footnote ¹²⁵ Undeniably, the success of judicial intervention in politics ultimately depends on the political environment and culture of any given society, as well as the absence of politicization of the law and the judiciary. If a Constitutional Court allows “political considerations” to prevail, there might be a weakening of legitimacy or the nonenforcement of its decision, and the other branches also may be tempted to act without constitutional control.Footnote ¹²⁶

Faced with difficult political issues litigated through constitutional challenges, the challenge for a Constitutional Court is to strike the right balance between upholding the constitution and respecting other coordinate state organs’ authority to resolve policy disputes. When adjudicating politico–constitutional issues, “the constitution,” – which invariably must be interpreted – must be read not through a positivistic lens but rather in light of long-standing values of societyFootnote ¹²⁷ and “constitutional identity.”Footnote ¹²⁸ In such a situation, the Court must not abandon its authority but rather should address the issue strategically or defer it to the political arena when deference is due.

In this regard, it is pertinent to cite the Inter-German Basic Treaty Case,Footnote ¹²⁹ in which the German Constitutional Court upheld the constitutionality of the treaty after asserting its right to fully review its conditions and terms. On its deference to the political branch of the state regarding the politico–constitutional issue of the unification of East and West Germany, the Court observed:

Any Constitutional Court dealing with politically important issues that is willing to use its authority strategically or to maintain strategic silence should appreciate the areas of free operation of the political branches. Concerning the constitutional challenge to the Thirteenth Amendment, it can be argued that the Appellate Division could have deferred to the parliament by upholding the constitutionality of the CTG system, which was not irrational or unreasonable. Because the judicial resolution of the problem of the legality of CTG was not as urgent or compelling, the Court also could maintain a strategic silence by keeping the cause pending and allowing political wisdom to prevail.

Conclusion

The aim of this chapter is to show that judicialization of politics in Bangladesh has become a reality. As discussed, however, the Supreme Court's intervention into politics has not always followed a consistent pattern. Regarding political disputes and politics-inspired constitutional challenges, the Court has played its role differently at different times. As is the case in other jurisdictions, judicialization in Bangladesh during extra-constitutional regimes has been mostly negative in the sense that the Court acted as a legitimizing player. During difficult political scenarios, however, the Court occasionally asserted itself, as in the HCD's activity during the 2007 Emergency. Conversely, during democracy, the Court often imposed self-restraint with regard to political issues, whereas it dealt strategically with political controversies at other times. Moreover, the Court recently has entered a phase of overjudicialization of politics, as in the case of the Appellate Division's decision on the CTG system.

In societies such as Bangladesh, characterized by unstable constitutionalism, there is a need for a context-specific approach to the judicial role vis-à-vis structural-political issues in particular. The core argument of this chapter is that judges must avoid political issues not on the grounds that the judiciary is incompetent but rather on the grounds of allowing institutional freedom for other political institutions. Moreover, it is argued, judicial intervention in politics is likely to be futile in an environment of constitutional instability or when the political culture is antagonistic.

The instances of judicialization of politics discussed in this chapter demonstrate that it is through the vehicle of judicial review ^__ sometimes judicial public-interest review ^__ that the Supreme Court of Bangladesh played a role in politics. To better realize its role against factors of unstable constitutionalism, or so the Court does not become a partner in perpetuating instability, theories of constitutional supremacy and popular sovereignty require the Court to cautiously apply the judicial-review tool. In particular, the extraordinary judicial-review power vis-à-vis constitutional amendments should be exercised rarelyFootnote ¹³¹ and only for the cause of preserving the “identity” of the state.