In the first staff seminar of 2017, Dr Ridwanul Hoque will present a paper titled ‘Unconstitutional constitutional provisions’.
The doctrine of basic structure (BSD) in South Asian constitutionalism allows the constitutional courts to declare a constitutional amendment unlawful. BSD (called the doctrine of unconstitutional constitutional amendments elsewhere) was entrenched in Bangladesh in 1989 and has been used by the court to invalidate four amendments to the Bangladesh Constitution. In a recent decision, now on appeal, the High Court Division of the country’s Supreme Court invalidated the 16th constitutional amendment that restored an original constitutional provision providing for the removal of Supreme Court Judges by a parliamentary resolution pursuant to a proven misconduct. This raises the question if the court can invalidate an original constitutional provision even though re-enacted by an amendment. This has been a unique scenario that indeed questions the established constitutional theories.
Dr Hoque will argue that the court lacks authority to invalidate an amendment restoring an original constitutional provision, and that claiming and asserting such a power would run counter to the original constituent power of the people who enacted the constitution. The analyses will have a critical reference to a similar case from Honduras.
Dr Ridwanul Hoque PhD (London), LLM (Cantab.) is a professor of law at the Department of Law, University of Dhaka. He has held visiting positions at Cornell University, the University of Melbourne, and La Trobe University and has published a book on Judicial activism in Bangladesh: A golden mean approach (Cambridge Scholars Publishing 2011). Professor Hoque’s areas of interest are constitutional law and theory, comparative constitutional law, and human rights of the vulnerable people. He has provided several expert reports for the UK and US courts and has been widely consulted by government ministries and international organisations.
Date: Friday 31 March 2017
Time: 11.45pm to 1pm. Light refreshments will be provided from 11.45am-12noon.
Venue: Level 2, La Trobe Law School Moot Court (Room SS232), La Trobe University, Bundoora
RVSP: Please register via Eventbrite. For catering purposes, please register no later than Monday 27 March 2017.