Constitutional dismemberments, basic structure doctrine, and pragmatic justifications in context : a rejoinder

Our article “Judicial Self-Dealing and Unconstitutional Constitutional Amendments in South Asia” focused on the Bangladesh Supreme Court’s Appellate Division (AD) judgment in Bangladesh v. Asaduzzaman Siddiqui, which struck down the Sixteenth Amendment to the Constitution of Bangladesh (1972). The Sixteenth Amendment restored an original constitutional provision but was nonetheless held unconstitutional for violating the Constitution’s basic structure. We argued that Siddiqui, though facially problematic, could be defended on both theoretical and pragmatic grounds. First, we argued that the Fifteenth Amendment to the Constitution could be characterized as a “constitutional dismemberment” that created a new constitutional settlement from which the Sixteenth Amendment had unconstitutionally deviated. Second, we noted that the Sixteenth Amendment raised the specter of undue political interference in judicial removals by transferring the removal power from a judgeled Supreme Judicial Council to Parliament. Given Bangladesh’s checkered history of partisan executive interference with the judiciary, we also contended that the AD was justified in striking down the amendment on pragmatic grounds. In their reply, M.A. Sayeed and Lima Aktar criticize both the theoretical and pragmatic arguments advanced in our article. We appreciate their engagement with our work, but as this Rejoinder will show, their critique misconstrues the theory of constitutional dismemberment, overstates the degree to which it conflicts with the basic structure doctrine (BSD), and rests on a non sequitur with respect to the pragmatic justification.