In 1989 the Appellate Division struck down a constitutional amendment for the first time, holding that Parliament cannot use its amending power to destroy the basic structure of the Constitution.
Anwar Hossain Chowdhury v Bangladesh (1989): The Eighth Amendment Case and the Basic Structure Doctrine
30th Sep 2026, author: admin
| CASE AT A GLANCE | |
|---|---|
| Citation | 1989 BLD (Spl) 1; (1989) 41 DLR (AD) 165 |
| Court | Appellate Division, Supreme Court of Bangladesh |
| Bench | Badrul Haider Chowdhury, Shahabuddin Ahmed, MH Rahman and ATM Afzal JJ (separate judgments) |
| Date | 2 September 1989 |
| Outcome | Amended Article 100 struck down by 3:1 (Afzal J dissenting) |
ARTICLE TEXT
Can Parliament change any part of the Constitution it likes, as long as it follows the procedure for amendment? In Anwar Hossain Chowdhury v Bangladesh, decided on 2 September 1989, the Appellate Division answered no. By a majority of three to one, it struck down part of the Constitution (Eighth Amendment) Act 1988 and adopted what is now known in Bangladesh as the basic structure doctrine. It was the first time a Bangladeshi court had invalidated a constitutional amendment, and the decision remains the cornerstone of constitutional review in the country.
The Background
The Eighth Amendment, passed during the Ershad government, did two things. It inserted Article 2A, declaring Islam the state religion, which was not in issue in this case. And it rewrote Article 100 to create six permanent benches of the High Court Division outside Dhaka, each with its own fixed territorial jurisdiction. Cases arising within a bench’s area could only be heard there.
The petitioner, Anwar Hossain Chowdhury, found that his case had been transferred to the new permanent bench at Sylhet. When he tried to swear an affidavit in Dhaka, the Commissioner of Affidavits refused to accept it. He challenged the amendment, and the matter reached the Appellate Division along with related appeals.
The Issue
The central question was whether Parliament’s power to amend the Constitution under Article 142 is unlimited, or whether there are core features of the Constitution that no amendment can destroy.
The Decision
Three of the four judges, Badrul Haider Chowdhury J, Shahabuddin Ahmed J and MH Rahman J, held the amended Article 100 invalid. Each wrote a separate judgment, but they agreed on the essential reasoning. ATM Afzal J dissented, holding that Parliament had the power to make the change.
The majority drew a distinction between the constituent power exercised by the people when they made the Constitution in 1972, and the amending power given to Parliament by Article 142. Parliament is a creature of the Constitution. It can amend the Constitution, but it cannot use that power to alter its basic structure, because that would be to exercise a power it was never given. The judges relied on Article 7, which declares that all powers belong to the people and that the Constitution is the supreme law, describing it as the pole star of the Constitution.
Applying that principle, the majority held that a single, unitary Supreme Court, with one High Court Division exercising jurisdiction over the whole Republic, is part of the basic structure. Permanent benches with separate territorial jurisdictions would in effect create several rival High Courts. Badrul Haider Chowdhury J described them as “rival courts to the High Court Division”, while Shahabuddin Ahmed J spoke of the destruction of the court’s “oneness”. The court drew heavily on the Indian Supreme Court’s decision in Kesavananda Bharati v State of Kerala (1973), where the basic structure doctrine was first developed.
Why It Matters
The Eighth Amendment case established that the Constitution of Bangladesh has an unamendable core, and that the Supreme Court is its guardian. Every later challenge to a constitutional amendment, from the Fifth Amendment case in 2010 to the Sixteenth Amendment case in 2017, has built on this foundation. The basic features identified by the court and its successors include the supremacy of the Constitution, democracy, the republican form of government, the unitary state, separation of powers and the independence of the judiciary.
The case also shows the doctrine’s practical side. It was not about an abstract principle but about access to justice: a litigant’s right to go to the High Court Division in Dhaka, and the risk of dividing the country’s highest court into competing parts.
The Debate Continues
The question of permanent High Court benches outside Dhaka has returned. In 2025 the Judiciary Reform Commission recommended permanent benches in every division, and political parties at the National Consensus Commission agreed on the idea in principle. Commentators have pointed out that any such reform must reckon with the 1989 judgment. Whether a new amendment can be designed to decentralise the High Court Division without destroying its unity is a question that may yet bring the Eighth Amendment case back before the Appellate Division.
Sources
- Eighth Amendment judgment, 1989 BLD (Spl) 1 (PDF): https://betterjustice.wordpress.com/wp-content/uploads/2013/03/1989-bld-spl-1-8th-amendment-judgment.pdf
- The Daily Star, Decentralising the High Court: between consensus and constitutional constraints: https://www.thedailystar.net/opinion/views/news/decentralising-the-high-court-between-consensus-and-constitutional-constraints-3965556
- Wikipedia, A. T. M. Afzal (starting point for bench details): https://en.wikipedia.org/wiki/A._T._M._Afzal
Recent Landmark Cases - Bangladesh
BLAST v Bangladesh (Shukur Ali Case, 2015): Why the Mandatory Death Penalty Was Struck Down
In 2015 the Appellate Division held that a law requiring courts to impose the death sentence, with no alternative, is unconstitutional. The case began with a boy of fourteen sentenced to death under a law that gave judges no choice. CASE AT A GLANCE Citation BLAST v Bangladesh (2015) 68 DLR (AD) 1; 1 SCOB [...]
The Sixteenth Amendment Case (2017): Who Should Remove a Supreme Court Judge?
In 2017 the Appellate Division unanimously struck down the Sixteenth Amendment, which had given Parliament the power to remove Supreme Court judges, and restored the Supreme Judicial Council. The judgment was upheld on review in October 2024. CASE AT A GLANCE Citation Government of Bangladesh v Advocate Asaduzzaman Siddiqui (2019) 71 DLR (AD) 52 Court [...]
The Thirteenth Amendment Case: How the Caretaker Government Was Abolished, and Then Restored
In 2011 the Appellate Division declared the caretaker government system unconstitutional by 4:3. Fourteen years later, in November 2025, the same court unanimously set that judgment aside on review, restoring the system for future elections. CASE AT A GLANCE Citation Abdul Mannan Khan v Bangladesh (2012) 64 DLR (AD) 169 Court Appellate Division, Supreme Court [...]
The Fifth Amendment Case (2010): Martial Law, the Moon Cinema and the Supremacy of the Constitution
What began as a dispute over a cinema hall in Dhaka ended with the Supreme Court declaring the Fifth Amendment and the martial law regimes of 1975–1979 unconstitutional. The judgment reshaped the Constitution and led directly to the Fifteenth Amendment. CASE AT A GLANCE Citation Khondker Delwar Hossain v Bangladesh Italian Marble Works Ltd (2010) [...]
BNWLA v Bangladesh (2009): The High Court’s Guidelines on Sexual Harassment at Work and in Education
With no law on sexual harassment in force, the High Court Division issued binding guidelines in 2009 for every workplace and educational institution in Bangladesh, including mandatory complaint committees. For sixteen years, those guidelines did the work of a statute. CASE AT A GLANCE Citation Bangladesh National Women Lawyers Association v Government of Bangladesh (2009) [...]
BLAST v Bangladesh: Curbing Arrest Without Warrant and Police Remand under Sections 54 and 167 CrPC
After a student died in police custody in 1998, BLAST challenged the police powers of arrest without warrant and remand. The High Court Division (2003) and Appellate Division (2016) issued binding guidelines that have shaped criminal procedure ever since. CASE AT A GLANCE Citation HCD: (2003) 55 DLR (HCD) 363. AD: Bangladesh v BLAST (2016) [...]
Secretary, Ministry of Finance v Masdar Hossain (1999): The Blueprint for Separating the Judiciary
In Masdar Hossain, the Appellate Division held that the judicial service is separate from the civil administration and issued twelve directions to free the lower judiciary from executive control. The separation finally took effect on 1 November 2007. CASE AT A GLANCE Citation (2000) 52 DLR (AD) 82 Court Appellate Division, Supreme Court of Bangladesh [...]
Dr Mohiuddin Farooque v Bangladesh (1997): The FAP-20 Case and the Meaning of “Person Aggrieved”
The Appellate Division held that a person or organization taking up a public cause on behalf of many people can be a “person aggrieved” under Article 102, even if not personally affected. The decision made public interest litigation a permanent part of Bangladeshi law. CASE AT A GLANCE Citation (1997) 49 DLR (AD) 1; 17 [...]
Kazi Mukhlesur Rahman v Bangladesh (1974): The Berubari Case and the Birth of Public Interest Standing
Only two years after the Constitution came into force, an advocate challenged the 1974 Land Boundary Agreement with India. He lost on timing, but the Appellate Division's approach to standing opened the door to public interest litigation in Bangladesh. CASE AT A GLANCE Citation (1974) 26 DLR (SC) 44 Court Appellate Division, Supreme Court of [...]
The Midnight Knock, Regulated: BLAST v Bangladesh and the Section 54 Guidelines
The case at a glance BLAST v Bangladesh (2003) 55 DLR (HCD) 363, affirmed with modified directives by the Appellate Division in Bangladesh v BLAST (2016). Holding: the powers of arrest without warrant under section 54 of the Code of Criminal Procedure 1898 and of remand under section 167 must be exercised subject to constitutional [...]
Who May Knock on the Court’s Door? Dr Mohiuddin Farooque and the Birth of PIL in Bangladesh
The case at a glance Dr Mohiuddin Farooque v Bangladesh (1997) 49 DLR (AD) 1 (Appellate Division). Also known as the FAP-20 case. Holding: "any person aggrieved" in Article 102 of the Constitution includes a person or organisation espousing a genuine public cause — public interest litigation is constitutionally at home in Bangladesh. The story [...]
Twelve Directives That Freed the Judiciary: The Masdar Hossain Case (2000)
The case at a glance Secretary, Ministry of Finance v Md. Masdar Hossain (2000) 52 DLR (AD) 82 (Appellate Division). Holding: the judicial service is a service of the Republic distinct from the executive civil service; twelve directives issued to give effect to the constitutional separation of the judiciary. The story Md. Masdar Hossain, a [...]
The Case That Tamed Parliament: Anwar Hossain Chowdhury v Bangladesh (1989)
The case at a glance Anwar Hossain Chowdhury v Bangladesh, 1989 BLD (Spl) 1; 41 DLR (AD) 165 (Appellate Division). Also known as the Eighth Amendment case. Holding: Parliament’s power to amend the Constitution under Article 142 does not extend to destroying its basic structure. The story The Constitution (Eighth Amendment) Act 1988 amended Article [...]