Eighth Constitution (Eighth Amendment) Act 1988
The Appellate Division declared the amendment of Article 100, which created permanent High Court benches outside Dhaka, void in 1989. Its other changes stand, though Article 2A was substituted by the Fifteenth Amendment of 2011.
The Fourth Parliament passed the Constitution (Eighth Amendment) Bill on 7 June 1988, and it became Act XXX of 1988. It made a set of changes, two of them far-reaching: a state religion and a dispersed High Court Division.
Section 2 inserted Article 2A: the state religion of the Republic is Islam, but other religions may be practised in peace and harmony. The Fifteenth Amendment later substituted it, adding equal status and equal right for other religions.
The Act substituted "Bangla" for "Bengali" as the name of the state language in Article 3 and "Dhaka" for "Dacca" in Article 5. It also substituted Article 30 on foreign titles and changed "salaries" to "remuneration" in Article 68.
The new Article 100 gave the High Court Division a permanent bench each at Barisal, Chittagong, Comilla, Jessore, Rangpur and Sylhet. The President, consulting the Chief Justice, would assign each bench a territorial area. Article 107 was amended to match.
In 1989 the Appellate Division, by three to one, held the Article 100 amendment void in Anwar Hossain Chowdhury v Bangladesh. The majority held that amending power does not extend to destroying the Constitution's basic structure. Justice A.T.M. Afzal dissented.
The original Article 100 was treated as revived, with sessions outside Dhaka allowed only by the Chief Justice with presidential approval. A separate challenge to Article 2A, filed in 1988, was discharged by a larger High Court bench on 28 March 2016.
In plain English
Constitution (Eighth Amendment) Act 1988
The Eighth Amendment inserted Article 2A, declaring Islam the state religion, and replaced Article 100 so that the High Court Division would have permanent benches at Barisal, Chittagong, Comilla, Jessore, Rangpur and Sylhet. It also changed "Bengali" to "Bangla" in Article 3 and "Dacca" to "Dhaka" in Article 5, substituted Article 30 on foreign titles, and made smaller changes to Articles 68, 103 and 107. In 1989 the Appellate Division struck down the Article 100 change in the Anwar Hossain Chowdhury case.
That judgment first adopted the basic structure doctrine in Bangladesh: Parliament may amend the Constitution but may not destroy its basic features.
Background
By 1988 President Hussain Muhammad Ershad governed under the revived Constitution after the martial law period of 1982 to 1986. A new Parliament, the Fourth, was elected in March 1988. The government proposed two significant changes: a state religion, and the decentralisation of the High Court Division into permanent regional benches, presented as bringing justice closer to people outside Dhaka. Lawyers' groups and others opposed the bench scheme as breaking up a single High Court Division.
Writ petitions were filed against the changes in 1988, including one by Anwar Hossain Chowdhury and others against the Article 100 amendment, and one against Article 2A.
What changed
What the Eighth Amendment changed, article by article
Article 2A
Eighth AmendmentThe state religion of the Republic is Islam, but other religions may be practised in peace and harmony in the Republic.
Section 2. Substituted by section 4 of the Fifteenth Amendment in 2011, which added equal status and equal right for the Hindu, Buddhist, Christian and other religions.
Article 3
Eighth AmendmentThe state language of the Republic is Bengali.
The state language of the Republic is Bangla.
Section 3.
Article 5
Eighth AmendmentThe capital of the Republic is Dacca.
The capital of the Republic is Dhaka.
Section 4.
Article 30
Eighth AmendmentNo citizen shall, without the prior approval of the President, accept any title, honour, award or decoration from any foreign state.
Section 5, according to the bdlaws footnote. A 2016 High Court judgment refers to section 5 as the provision that amended Article 100, so the section numbering should be checked against the Act.
Article 68
Eighth AmendmentMembers of Parliament shall be entitled to such salaries, allowances and privileges ...
Members of Parliament shall be entitled to such remuneration, allowances and privileges ...
Section 6.
Article 100
Eighth AmendmentThe permanent seat of the Supreme Court shall be in the capital, but sessions of the High Court Division may be held at such other place or places as the Chief Justice may, with the approval of the President, from time to time appoint.
The High Court Division shall have a permanent Bench each at Barisal, Chittagong, Comilla, Jessore, Rangpur and Sylhet, and the President, in consultation with the Chief Justice, shall assign the area of each Bench (clauses (1) to (6)).
Declared void by the Appellate Division in 1989; the original Article 100 stands revived.
Article 103
Eighth Amendment... has sentenced a person to death or to transportation for life ...
... has sentenced a person to death or to imprisonment for life ...
Section 8, in clause (2)(b).
Article 107
Eighth AmendmentInserted in clause (3) the words "or any Bench of a permanent Bench of the High Court Division referred to in clause (3) of article 100".
Treated as omitted after the Article 100 amendment was declared void in 1989.
What happened next
What happened to the Eighth Amendment next
Anwar Hossain Chowdhury and others challenged the Article 100 amendment. In 1989 the Appellate Division, by a majority of three to one (Justices Badrul Haider Chowdhury, Shahabuddin Ahmed and M.H. Rahman, with Justice A.T.M. Afzal dissenting), declared it void. The majority held that Article 142 does not allow Parliament to destroy the basic structure, including a single High Court Division with plenary jurisdiction over the whole Republic. The original Article 100 revived and Article 107 reverted. A writ petition against Article 2A filed in 1988 (Writ Petition No.
1434 of 1988) was discharged by a three-judge High Court Division bench on 28 March 2016. The Fifteenth Amendment substituted Article 2A in 2011.
Timeline
- Fourth Parliament elected
- Eighth Amendment passed by Parliament
- Assent, as reported
- Appellate Division strikes down the Article 100 amendment, as reported
- Fifteenth Amendment substitutes Article 2A
- High Court Division discharges the 1988 challenge to Article 2A
Landmark cases
How the courts have read the Eighth Amendment
Appellate Division · 1989
Anwar Hossain Chowdhury v Bangladesh (Eighth Amendment case)
41 DLR (AD) 165; 1989 BLD (Spl) 1
By three to one, declared the amendment of Article 100 void, holding that Parliament's amending power under Article 142 does not extend to destroying the basic structure of the Constitution, of which a unitary High Court Division and judicial independence form part.
High Court Division · 2016
Swairachar O Sampradaiyikata Protirodh Committee v Bangladesh (Writ Petition No. 1434 of 1988)
19 SCOB [2024] HCD 41
On 28 March 2016 a three-judge bench discharged the Rule against Article 2A. As reported in SCOB, the majority found no discrimination in Article 2A as it now reads, while Justice Md Ashraful Kamal noted that the Rule was discharged only on the petitioners' lack of standing.
Questions
Eighth Amendment: frequently asked questions
Why is the Eighth Amendment case so important?
It was the first time the Appellate Division struck down a constitutional amendment. The majority held that Parliament may amend the Constitution under Article 142 but may not destroy its basic structure. Later courts relied on that doctrine in the Fifth, Seventh, Thirteenth, Sixteenth and Fifteenth Amendment cases.
Did the Eighth Amendment make Islam the state religion?
Yes. It inserted Article 2A in 1988. The Fifteenth Amendment of 2011 substituted the Article, keeping Islam as the state religion but adding that the State shall ensure equal status and equal right in the practice of the Hindu, Buddhist, Christian and other religions.
Can the High Court Division sit outside Dhaka?
Yes, but only as sessions of the one High Court Division. Under the revived Article 100, the Chief Justice may, with the President's approval, appoint other places for sessions. Permanent regional benches of the kind created in 1988 were held to break up the Division.
Sources
- Laws of Bangladesh (bdlaws): Constitution, Article 3 (footnote on the Eighth Amendment)
- Laws of Bangladesh (bdlaws): Constitution, Article 5 (footnote on the Eighth Amendment)
- Laws of Bangladesh (bdlaws): Constitution, Article 30 (footnote on the Eighth Amendment)
- Laws of Bangladesh (bdlaws): Constitution, Article 68 (footnote on the Eighth Amendment)
- Laws of Bangladesh (bdlaws): Constitution, Article 2A
- Archived English text of the Constitution with pre-2004 footnotes, Part I (RESDAL copy)
- Archived English text of the Constitution with pre-2004 footnotes, Part VI (RESDAL copy)
- Supreme Court Online Bulletin: 19 SCOB [2024] HCD 41 (Writ Petition No. 1434 of 1988, citing 41 DLR (AD) 165)
- The Daily Star Law and Our Rights (1 August 2012): the Eighth Amendment case and High Court benches
- Banglapedia: Constitutional Amendments
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