How to do Basic Structure Review: the Sixteenth Amendment Case, Originalist Question, and the Moral Reading of the Constitution.

In the Sixteenth Amendment Case, the Supreme Court of Bangladesh invalidates the impugned amendment, which attempted to revive some provisions of the original constitution relating to the removal of judges, on the ground that it violates the basic structure of the constitution. In so doing, it establishes that the “basic structure” should be identified with reference to the “[c]onstitution as it stood on the date of its amendment”. This paper identifies the contradiction in such a “textualist” formulation while showing how it upsets the moral authority of the doctrine to promote the “court-centric” constitutionalism in Bangladesh. Drawing on Dworkin’s concept of the moral reading of the constitution, it argues that the original constitutional provision can be discarded by basic structure review only when its “moral reading” is prioritized over the textualist reading of the constitution.