Authored By: Anika Afrin Tisha
University of Rajshahi
Case Title & Citation:
Bangladesh Italian Marble Works Ltd v Government of Bangladesh [2006] 59 DLR (AD) 129
Court Name & Bench:
Appellate Division, Supreme Court of Bangladesh
Bench: Syed JR Mudassir Husain CJ, MA Aziz J, Amirul Kabir Chowdhury J, ABM Khairul Haque J
Date of Judgment:
29 August 2005 (reported in 2006)
Background and Context:
The constitutional history of Bangladesh has been profoundly shaped by military interventions. Following the assassination of Sheikh Mujibur Rahman in 1975, Martial Law was declared and remained in force until 1979. During this period, Martial Law administrators issued numerous proclamations, regulations, and orders that effectively replaced parliamentary governance and restricted judicial review.
To protect these measures from judicial scrutiny, the Fifth Amendment of the Constitution was enacted in 1979. It retroactively validated all Martial Law proclamations and orders between 1975 and 1979, giving them the same force as constitutional provisions. This amendment effectively sought to legitimize an extra-constitutional regime and embed it within the constitutional order.
Bangladesh Italian Marble Works Ltd, a private company affected by one of these proclamations, challenged the Fifth Amendment, arguing that it was unconstitutional and violated the basic structure of the Constitution.
Facts of the Case:
Between 1975–1979, Bangladesh was ruled under Martial Law.
During this period, numerous legal and constitutional changes were made without parliamentary approval.
In 1979, the Fifth Amendment inserted Paragraph 18 into the Fourth Schedule of the Constitution, retrospectively legitimising all acts done under Martial Law.
The High Court Division declared the amendment unconstitutional.
The Government appealed to the Appellate Division, bringing the matter to final judicial scrutiny.
Issues Before the Court:
- 1. Could Parliament, under Article 142, retrospectively validate extra-constitutional measures taken during Martial Law?
- 2. Did the Fifth Amendment violate the basic structure of the Constitution? ● 3. Was Martial Law itself compatible with the Constitution of Bangladesh?
Arguments of the Parties:
Appellant (Italian Marble Works Ltd):
The Fifth Amendment unlawfully validated illegal Martial Law proclamations.
Parliament’s amending power is not unlimited; it is restricted by the basic structure doctrine.
By recognising Martial Law, the amendment destroyed the supremacy of the Constitution, judicial independence, and the rule of law.
Respondent (Government of Bangladesh):
The amendment was necessary to maintain continuity of state affairs.
Without validation, thousands of decisions, laws, and administrative actions would collapse, causing chaos.
Parliament’s amending power under Article 142 is plenary, and includes the authority to act retrospectively.
The amendment reflected pragmatic governance and national interest.
Judgment:
The Appellate Division dismissed the Government’s appeal and upheld the High Court’s verdict.
The Fifth Amendment was declared unconstitutional, illegal, and void ab initio. Martial Law was held to be repugnant to the Constitution and inconsistent with democratic governance.
The Court struck down all attempts to legitimize extra-constitutional rule.
Legal Reasoning:
- 1. Basic Structure Doctrine: The Court reaffirmed that Parliament cannot alter the “basic structure” of the Constitution.
- Essential features such as constitutional supremacy, separation of powers, rule of law, independence of judiciary, and democracy are beyond amendment.
- Invalidity of Martial Law: Martial Law was described as fundamentally inconsistent with constitutional order. A Constitution born of democratic struggle cannot accommodate the suspension of its own supremacy.
- Limits of Parliamentary Power: Although Parliament holds wide amending powers under Article 142, it cannot validate unconstitutional or extra-constitutional acts. To allow such validation would effectively sanction authoritarianism.
- Judicial Duty: The Court emphasised its responsibility to act as the guardian of the Constitution and protect its fundamental structure from erosion by either Parliament or executive authorities.
Impactance and Significance:
Restoration of Constitutional Supremacy: The case reasserted the principle that the Constitution is the supreme law of the land and cannot be subordinated to Martial Law proclamations.
Delegitimisation of Military Rule: The judgment delegitimised past military regimes and sent a clear signal that no future Martial Law could be justified.
Strengthening Democracy: By invoking the basic structure doctrine, the Court fortified democratic values, ensuring that core constitutional principles are beyond political manipulation.
Comparative Constitutionalism: The case parallels India’s Kesavananda Bharati v State of Kerala (1973), where the basic structure doctrine was first articulated. However, in Bangladesh, the doctrine was applied to resist authoritarianism directly, giving it a stronger anti-coup dimension.
Legacy: The decision has been cited in subsequent cases, including challenges to the Seventh Amendment, further strengthening the position that extra-constitutional regimes are illegal.
Conclusion:
The Bangladesh Italian Marble Works Ltd case stands as a landmark in Bangladesh’s constitutional jurisprudence. By invalidating the Fifth Amendment, the Supreme Court not only restored constitutional supremacy but also sent a clear warning that no future Parliament can legitimise unlawful regimes. This judgment embodies the judiciary’s role as the guardian of democratic governance and represents one of the strongest applications of the basic structure doctrine in South Asia.
Bibliography:
Bangladesh Italian Marble Works Ltd v Government of Bangladesh [2006] 59 DLR (AD) 129.
