The Basic Structure doctrine goes global

The doctrine of basic structure is a judge-made doctrine which seeks to limit or curtail the power of the Parliament so that the basic structure of the basic law cannot be amended in the exercise of its constituent power under the Constitution of India. This blog post shall establish the comparison between India and the practice of the Basic Structure Doctrine in other countries. The doctrine of basic structure created in India is to render certain provisions unamendable and this has been followed, post the Second World War in various countries of which Germany is a prime example.[1] The Constitutions of Greece and Portugal have provided a list of all unamendable provisions which is long and fairly exhaustive.[2] The Constitutions of several countries such as France and Italy on the other hand, have attempted to safeguard only one or two core principles such as the Republican form of Government.[3] In the context of Iran, the unamendable provisions include those which relate to the Islamic and democratic character as well as the objectives of the republic such as social and economic goals.[4]

With regards to Pakistan, initially after the Kesavananda decision in India, a debate ensued in Pakistan, which however resulted in the rejection of placing substantive limits on the amendments.[5] However, in 1997, the Pakistani Supreme Court reopened this question when deciding whether an amendment that allowed the President to dissolve the National Assembly was valid or not.[6] Although the amendment was not struck down, Chief Justice Ali Shah opined that the fundamental or basic features of the Preamble should be retained and not altered.[7] While this initially led to a basic structure doctrine in Pakistan, the very next year it was overruled impliedly by a 7 judge bench.[8] Since then, the Courts have adopted either approach in certain cases, swinging both ways and it remains to be seen whether it shall be solidified or discarded.

In a case of 2015, however, this question was squarely addressed. In the majority opinion, 8 judges held that there were implied limitations on the amending powers of the Parliament. The court held that, “This Court is vested with the jurisdiction to interpret the Constitution in order to ascertain and identify its defining Salient Features. It is equally vested with jurisdiction to examine the vires of any constitutional amendment so as to determine whether any of the Salient Features of the Constitution has been repealed, abrogated or substantively altered as a consequence thereof.”[9] Democracy, parliamentary form of government and the Judiciary were outlined as the basic structure. The minority judges, 4 in number stated that, “The basic structure doctrine…has…[become] a vehicle for judicial aggrandisement of power at the expense of the elected representatives of the people. On the conceptual plane, it is devoid of merit and amounts to little more than a vessel into which the Judges can pour whatever economic, political or social theory as may catch their fancy or whim at any given time.[10] 5 other judges, while agreed that there were limitations, did not endorse the doctrine as that of the basic structure of the Constitution.[11]

In the country of Thailand, the 2007 Constitution prohibits amendments which change the democratic regime of the Government with the King as the head of the state or which has the effect of changing the form of the State.[12] Though this is a typical unamendable provision, the Constitution goes further to provide judicial powers to control representative bodies.[13] There is no specific mention of the basic structure, merely unamendable provisions.

The doctrine of the basic structure has also been invoked in certain cases in Belize in order to strike down amendments to the Constitution, and in both cases while the special majority required had been attained, the Supreme Court declared as such. These are the first examples of invocation by a commonwealth Caribbean court.[14] In the case of Bowen v. Attorney General, it was held that “the law-making powers of the Belizean Parliament are not unlimited in as much as the Belizean Parliament cannot ‘legitimately’ make laws that are contrary to the ‘basic structure’ of the Constitution itself. The basic structure comprises not only the fundamental rights guaranteed by Chapter II of the Constitution, but also the principles, ideas, beliefs and desires of the people of Belize as enshrined in the Preamble of the Constitution, which include, among other things, respect for the rule of law and the right of the individual to the ownership of private property. The separation of powers, which has been previously recognized by the Judicial Committee of the Privy Council (JCPC) is also a basic feature of the structure of the Westminster type Constitutions adopted by Commonwealth Caribbean countries upon independence as per the case of Hinds v. The Queen.[15] This principle would be violated if the citizens of Belize were to be denied access to the courts for compensation for the arbitrary derivation of their property by the State.”[16]

In another case of British Caribbean Bank Ltd. v. AG Belize Claim, which was pertaining to the 8th Constitutional amendment, it was held that the National Assembly cannot make amendments which alter the basic structure of the Belize Constitution and the 8th Constitutional amendment sought to prevent the court from determining whether arbitrary deprivation of land by government was for a public purpose and encroached upon separation of powers, and amended the basic structure and to this extent, were null and void.[17]

The High Court of Australia has also held in the case of Nationwide News Pty Ltd v. Willis[18] that the law making powers of the Parliament are subject to limitations which can be inferred in and from the Constitution of Australia itself. Even in Britain, in certain cases such as Jackson v. Attorney General it was held that, “In exceptional circumstances involving an attempt to abolish judicial review or the ordinary role of the courts, the House of Lords may have to consider whether this is a constitutional fundamental which even a sovereign Parliament cannot abolish.”[19]

It is important to specifically consider the position of South Africa as well, as a debate has been ensuing regarding the applicability of the doctrine in that country as well. In Premier, KwaZulu-Natal v. President of the RSA[20] and Executive Council, Western Cape Legislature v. President of the Republic of South Africa,[21] the court referred to the doctrine, hinting at the possible application in South Africa by stating that there could be implied limitations on the powers of the Parliament to amend. In UDM v President of the RSA[22] the constitutional court, however, was unwilling to consider the basic structure doctrine, stating that an amendment which is passed in accordance with the formal and procedural requirements forms part of the Constitution and cannot be challenged as an infringement of its basic structure. However, these statements are obiter as the legislation in question was not regarded as a threat to the basic structure of the Constitution.[23]

Roux, further, refers to the South African constitutional court as a “constrained court” which attempts to justify its decisions through the language of the text of the Constitution in order to protect it Constitutional independence. “This is indicative of a very formalist legal culture and a conservative approach to the separation of powers, unlike the Indian Supreme Court. The South African constitutional court will attempt to justify the application of the basic structure doctrine through the text of the Constitution – an unlikely development in light of the fact that the Constitution itself allows for the amendment of the entire Constitution. Roux suggests an alternative approach for the constitutional court in protecting the basic structure of the Constitution by arguing that the court must progressively strengthen its institutional role by shifting the borders of its traditional functions. Over time a legal culture will develop that is justified by the text of the Constitution and strong enough to withstand a challenge to the basic structure of the Constitution.”[24]

The above is the link between the basic structure doctrine as developed and espoused in India and its reflections or acceptance in several other jurisdictions in their various forms.

[1] Article 1, 20, 79, Constitution of Germany, 1949.

[2] Articles 2, 4-5, 13, 26, 110, Syntagma Constitution, The Constitution of Greece, 1975. Article 288, The Constitution of Portugal, 1976.

[3] Article 89, Constitution of France, 1958. Article 139, Constitution of Italy, 1947.

[4] Article 177(5), Qanuni Assassi Jumhuri’i Isla’mai Iran [The Constitution of the Islamic Republic of Iran], 1980.

[5] Karim, F.: Judicial Review of Public Actions: A Treatise on Judicial Review (Karachi, Pakistan Law House 2006), 1254–76.

[6] Mahmood Khan Achakzai v. Federation of Pakistan, PLD 1997 SC 426.

[7] Mahmood Khan Achakzai v. Federation of Pakistan, PLD 1997 SC 426.

[8] Wukala-Muhaz v. Federation of Pakistan, PLD 1998 SC 1263.

[9], Supreme Court of Pakistan, Decision on Several Similar Constitution Petitions, http://www.supremecourt.gov.pk/web/user_files/File/Const.P.12of2010.pdf (2010).

[10] Ibid.

[11] Majid Rizvi, South Asian Constitutional Convergence Revisited: Pakistan and the Basic Structure Doctrine, Int’l J. Const. L. Blog (Sept. 18, 2015)  http://www.iconnectblog.com/2015/09/south-asian-constitutional-convergence-revisited-pakistan-and-the-basic-structure-doctrine.

[12] Ch. 15, Somdet Phra Paramintharamaha Bhumibol Adulyadej [Interim Constitution of Thailand], 2006.

[13] Iftikhar Husain Bhat, Doctrine of Basic Structure as a Constitutional Safeguard, International Journal of Research in Humanities and Social Sciences, http://raijmr.com/wp-content/uploads/2013/04/7_27-38-Iftikhar-Hussian-Bhat.pdf (2013).

[14] Derek O’Brien, The Basic Structure Doctrine and the Courts of the Commonwealth Carribean, UK Constitutional Law Association https://ukconstitutionallaw.org/2013/05/28/derek-obrien-the-basic-structure-doctrine-and-the-courts-of-the-commonwealth-caribbean/ (2010).

[15] Hinds v. The Queen, PC 1 Dec 1975.

[16] Hinds v. The Queen, PC 1 Dec 1975.

[17] British Caribbean Bank Ltd. v. AG Belize Claim, PCA Case No. 2010-18.

[18] Nationwide News Pty Ltd v. Willis, (1992) 177 CLR 1.

[19] Jackson v. Attorney General, [2005] UKHL 56.

[20] Premier, KwaZulu-Natal v. President of the RSA, [1995] ZACC 10.

[21] Executive Council, Western Cape Legislature v. President of the Republic of South Africa, [1995] ZACC 8.

[22] UDM v President of the RSA, [2002] ZACC 21.

[23] Cecile van Schalkwyk, The Basic Structure Doctrine: A basis for application in South Africa, or a violation of Separation of Powers, http://www.litnet.co.za/the-basic-structure-doctrine-a-basis-for-application-in-south-africa-or-a-violation-of-the-separation-of-powers/ (2015).

[24] Cecile van Schalkwyk, The Basic Structure Doctrine: A basis for application in South Africa, or a violation of Separation of Powers, http://www.litnet.co.za/the-basic-structure-doctrine-a-basis-for-application-in-south-africa-or-a-violation-of-the-separation-of-powers/ (2015).



ABOUT THE AUTHOR

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SANSKRITI SANGHI

Currently pursuing her undergraduate degree from the Gujarat National Law University, Gandhinagar, Sanskriti Sanghi possesses a flair for writing and a yearn to learn. Being avidly interested in Antitrust law, Intellectual Property Rights, Children’s Rights and International Relations, she seeks to engage in and discuss multiple disciplines which keep her constantly discovering. She believes in immersing and involving herself in various activities and letting the passion for each of those interests allow her to deliver her best.

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