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

The recent constitutional trend in divided societies and relativelyunstable democracies has seen an increased use of perpetuityclauses as a tool to foster constitutional stability. Propriety andeffectiveness of making certain part or parts of constitution totallyunamendable either by insertion of some perpetuity clauses or byjudicial articulation of perpetual norms (basic structure) has beendoubted by many. The Supreme Court of Bangladesh tested the wayof judicial articulation of certain perpetual norms as back as 1989.The 2011 amendment to the constitution of Bangladesh has includeda very widely framed perpetuity clause and, also, a very vaguereference to the basic structure doctrine. This article considers thefragilities of these two parallel tracks to unamendability and showshow a median line could be drawn by installing a system of popularreferendum in the constitution amendment process. Considering thequalitative questions over Referendum as a tool of deliberativedemocracy, the paper would argue for a reformulated version of thereferendum system that was introduced in Bangladesh in 1979 butscrapped by the amendment of 2011