BASIC STRUCTURE DOCTRINE: OLD WINE IN A NEW BOTTLE?

The Supreme Court of Pakistan (“SCP”), by an overwhelming majority of 13 out of 17 judges, recently held that it has intrinsic powers to review the constitutionality of a constitutional amendment passed by the Parliament.[i] While the 902 page judgment has been hailed as an ostensibly favorable instance of the current trend of Asian nations such as Bangladesh, Sri Lanka and Malaysia among others[ii] to uphold the Basic Structure Doctrine (“BSD”), an in-depth analysis shows that the BSD was not adopted in an identical manner to India- in fact, a different doctrine was upheld, namely the Salient Features Doctrine (“SFD”).

This essay focuses on the understanding the BSD in the present day context in order to place in context Pakistan Supreme Court’s decision with other counterparts who have been or still are reluctant in importing the said doctrine in the manner conceptualized in India.

I. The Salient Features Doctrine

In the SCP’s decision, the petitions challenging the 18th Amendment (laying down a new procedure of judicial appointments) and 21st Amendment (setting up a series of military courts to try cases involving terrorism) to the Constitution were heard together as they involved a common constitutional question as to whether there are any limitations on the powers of the Parliament to amend the Constitution and whether the Courts possess jurisdiction to strike down a constitutional amendment.  The SCP, by aforementioned majority, answered both questions in the affirmative, saying that despite Article 239(5) which prohibits a Constitutional Amendment to be brought to question in a court, and Article 239 (6) which declares the absence of limits on the powers of amendment of the Parliament with regard to any part of the Constitution, there remains room for judicial review.

The verdict asserted that, from State v. Ziaur Rahman[iii] to Nadeem Ahmed v. Federation of Pakistan,[iv] the SCP has consistently held that the BSD has been recognized only to the extent of identifying salient or fundamental features of the Constitution. Nowhere has such a basic structure as commonly understood in India to be left deliberately vague and undefined, been recognized by the SCP. It was held that the difference in politico-judicial histories of India and Pakistan warrant the assertion that the BSD, as developed in a foreign jurisdiction like India, cannot be similarly applied “unthinkingly” to Pakistan, especially when there is ample dissent in Kesavananda itself. The earlier trend of passing draconian amendments including those concerning the “taming” of the judiciary[v] have gradually ceased, according to the SCP, and therefore, unlike their Indian counterparts, recent constitutional amendments in Pakistan generally have a unique beneficial intent and effect, obviating the necessity for a BSD. This argument appears to attribute the very “heroism” to elected representatives which he denounced, when attributed to the Judiciary, and optimistic in its assumption that the Parliament would not relapse into such tyranny. On an organic reading of the Constitution, it appears that the Parliament’s power to amend the Constitution is constrained by limitations which are both political and subject to judicial review, that the expression “amendment”, ordinarily implying correction and improvement, does not extend to abrogation or destruction and, therefore, SCP has the power to strike down a Constitutional amendment which transgresses these limits.

The Preamble, [vi] on account of its clarity in issuing nine People’s directives, is unlike the hopelessly vague Indian Constitution’s Preamble, and therefore judges in Pakistan need not rely on individual proclivities to circumscribe powers of State organs, like Indian judges do. Justice Osmany clearly observed that, therefore, the acceptance of prominent features does not equate to implied acceptance of BSD. However, even the SFD as recognized by Khawaja, differs from the SFD recognized by the 8 judges in concurrence with Justice Azmat Saeed- while the former rooted them in the Preamble, the later said that the SC “is vested with the jurisdiction to interpret the Constitution in order to ascertain and identify its defining Salient Features.” Thus complete definitional unanimity among the 13 judges who approved SFD is also not observed, which may lead to potentially very different implications.

Critics such as Babbar Sattar have opined that the judgment allows the court to irresponsibly appropriate power for itself,[vii] diverting attention from the narrative that roots public support for military courts, in the failures of Pakistan’s criminal justice system, such as failings in ‘due process’ and ‘fair trials’ before ordinary courts, now widely regarded as a sanctuary for terrorists. It is also noteworthy to mention that the concomitant vital question- whether such institution of military courts, without any technical or operational discussion of international and national counterterrorism practices, would actually aid in ending the internal war in Pakistan- has been studiously ignored.

Thus, the verdict does not explain how a scheme reflecting the Constitution’s Salient Features which define the Constitution is realistically different from a basic structure, especially when the meaning of SFD is left unclear. This attempt to chart a neutral middle path between complete non-interference and the BSD fails to distinguish itself materially from the BSD, even after the presentation of afore-mentioned arduous and long-drawn arguments.

II. The Cases of Singapore and Malaysia

The basic structure doctrine is an often touched upon topic in the South East Asian countries with regard to amendments to the Constitution. While the import of this doctrine was spearheaded and developed in India, most other countries have been, not unlike Pakistan, cautious or even hesitant in adopting the same. The common point of contention is the dubious and undefined nature of this supposed structure and the scope of the same.

Singapore

The courts in Singapore are unclear as to the applicability of this doctrine to the Constitution of the Republic of Singapore. While prima facie the High Court in Teo Soh Lung v. Minister for Home Affairs[viii] rejected the applicability of the basic structure caveat to the amendment to the Singapore Constitution, the uncertain grounds on which the notion is based in addition to subsequent wavering case laws have made the understanding ambiguous. In the aforementioned judgment, the rejection of the basic structure doctrine was three pronged. It was firstly argued that the absence of an express limitation laid down on the Parliament’s power of amendment in the amendment provision of the Constitution is equivalent to their being a lack of legislative intent in this regard. This being the only technical argument, the latter two contentions were politico legal in nature. On one hand, the inaction of other countries with the Westminister mode of separation of powers with regard to the adoption of this doctrine had been raised as general practice. But more importantly, it had specifically been noted that unlike in India where the Constitution had been drafted by the Constituent Assembly, the Constitution in Singapore had been conceived as a legislative enactment, wherein there has been a silence upon applicability of the BSD.[ix]

Academicians have critiqued this stance by citing references to other South Asian and certain Western countries, wherein mere silence upon the limitations to amending powers have not abrogated the concept of an inalienable basic structure or the scope of judicial review.[x] Furthermore, an observation made in this regard was the generous adoption of this doctrine in few South Asian countries.[xi]

Like Pakistan, there has been an acceptance of features such as the separation of powers and the legality principle of the prohibition of there being any absolute power which is not limited by the constitution as being fundamental features,[xii] which is a step ahead towards recognizing the doctrine. However, one of the more recent case laws on the matter, Vellama D/O Marie Muthu v. Attorney General[xiii] which was concerned with the discretion of the Prime Minister for not calling upon elections for filling up the vacancy of a constituency, it was merely iterated that the discretion of the Prime Minister was required to be balanced with and limited by the right of representation of the people. It is to be noted in this regard that the while the courts in Singapore have attempted at earmarking features as forming part of the basic structure, there has been no explicit remark upon the non abrogation of these by a Constitutional amendment in accordance with due procedure.

Malaysia

In The Government of the State of Kelantan v. Government of the Federation of Malaya[xiv] it was held in principle by the Supreme Court of Malaysia that notwithstanding the legislative power of the Parliament, it cannot amend the Constitution in a manner that is ‘so fundamentally revolutionary so as to change the basic structure of the Constitution,’ such that the same requires the fulfillment of a condition not present in the Constitution. Therefore, an amendment to the Constitution is to receive validity by extra constitutional criteria. However, it was ultimately held that the consent of the Kelantan was not a pre requisite for the said amendment and the Parliament having not brought about a fundamental change, was not in abrogation of its powers.

The aforementioned case and another[xv] had essentially rejected the basic structure doctrine in an attempt to uphold the Parliamentary supremacy of legislating laws. However, it was in Sivarasa Rasiah v. Badan Pegaum Malaysia[xvi] that the doctrine was formally accepted. The facts of the case were concerned with the eligibility of the appellant towards election to the Malaysian Bar Council. The violations claimed were that of the right of association, equality and personal liberty. The court in the case in question, while taking cognizance of the precedents, held that the legislative power of the Parliament, while in consonance with the separation of powers, is subject and ultimately limited to the Constitution.  Moreover, this case went a step further by including Fundamental Rights as within the basic structure of the Constitution and thereby rendering them inalienable.

III. Earmarking Features

It is evident that the Pakistani courts do not stand alone in merely identifying features that lie at the core of the constitution on the one hand and shying away from implementing it as a restriction to the legislative powers of the Parliament. Among the other countries which have adopted a similar approach is Singapore where the stance has not been clarified till the present date. Here the legality doctrine which pre supposes the validity of any legislation is one that the courts are reluctant to shed off. Malaysia has however drifted from Singapore’s stance and adopted the BSD towards Constitutional Amendments. The difference of the latter two jurisdictions vis a vis India and even Pakistan is the lack of the special status meted to the drafters of the Constitution or the respective Constituent Assemblies. The courts in Malaysia have imported the basic structure doctrine in a passive manner so as to identify the same but having not yet applying the same to any constitutional amendment. A point of contention voiced by the courts, not unlike in Singapore, was the difference in the Constitutional history in India as compared to the former two countries. It is also speculated that unlike in India, in Singapore, there is no delegation of the power of law making to the ‘people’ and hence the concept of review is an absurdity.[xvii]

 However, not unlike India, both Singapore and Malaysia have recognized fundamental features of the Constitution such as the separation of powers, the right to vote, right to religion and other varied civil rights.[xviii] The issue that still remains is whether the violation of the said features necessarily poses impediment to the amendment in question. Pakistan on the other hand has more definitively shifted the mantel to the Preamble to form the basis of the Basic Structure. The common contention that still remains in importing the Indian model of the BSD is the hesitance of adopting a foreign doctrine and the vagueness of the supposed structure.

IV. Conclusion

The applicability of the Basic Structure Doctrine is contentious both in terms of adaptability and enforcement in jurisdictions other than that of India. This doctrine which, due to its undefined nature, continues to be organic in its perception and application. Factors such as difference in political and constitutional history as well as structures are currently posing hindrance towards the doctrine becoming a universal watchdog of legislative actions.

This post was authored by Nayana Dasgupta and Aratrika Choudhuri, students at the West Bengal National University of Juridical Sciences and members of NUJS Constitutional Law Society. 

End Notes:

[i] Lahore Bar Association v. Federation of Pakistan, Const.P.11/2015 (Pakistan SC).

[ii] Anwar Hussain Chawdhry v. Republic of Bangladesh [1989 BLD (Supplement) 1].

[iii] PLD 1973 SC 49.

[iv] PLD 2010 SC 1165.

[v] See The Constitution of Pakistan, 1973, Art.280.

[vi] It proclaims the following principles:

  1. the State shall exercise its powers and authority through the chosen representatives of the

people;

  1. the principles of democracy, freedom, equality, tolerance and social justice, as enunciated by

Islam, shall be fully observed;

iii. the Muslims shall be enabled to order their lives in the individual and collective spheres in

accordance with the teachings and requirements of Islam as set out in the Holy Quran and Sunnah;

  1. adequate provision shall be made for the minorities freely to profess and practice their religions

and develop their cultures;

  1. the territories now included in or in accession with Pakistan and such other territories as may

hereafter be included in or accede to Pakistan shall form a Federation wherein the units will be

autonomous with such boundaries and limitations on their powers and authority as may be prescribed;

  1. fundamental rights, including equality of status, of opportunity and before law, social, economic

and political justice, and freedom of thought, expression, belief, faith, worship and association shall be

guaranteed, subject to law and public morality;

vii. adequate provision shall be made to safeguard the legitimate interests of minorities and

backward and depressed classes;

viii. the independence of the judiciary shall be fully secured; and

  1. the integrity of the territories of the Federation, its independence and all its rights, including its sovereign rights on land, sea and air, shall be safeguarded.

[vii] Babbar Sattar, A new judicial veto, The News, Saturday, August 08, 2015, available at http://www.thenews.com.pk/Todays-News-9-333084-A-new-judicial-veto

[viii] [1989] 1 S.L.R. (R.) 461, H.C

[ix] Id.

[x] Liyanage v. The Queen, [1967] 1 AC 259

[xi]The Law Society of Singapore, Law Gazette, August 2014, available at http://www.lawsociety.org.sg/portals/0/ResourceCentre/eshop/pdf/SLG_AUG_2014.pdf

[xii] Yong Vui Kong v. Attorney General [2011] 2 SLR 1189.

[xiii] [2013] 4 SLR 1.

[xiv] [1963] M.L.J 355.

[xv] Loh Koi Choon v. Government of Malaysia, [1977] 2 MLJ 187.

[xvi] [2010] 3 CLJ 507.

[xvii]The Basic Structure Doctrine in Singapore: A Reply, Feature, Law Gazette, available at http://www.lawgazette.com.sg/2014-11/1179.htm

[xviii] Hudud: Let the Apex Court Decide, FMT News, May 22, 2014, available at http://www.freemalaysiatoday.com/category/opinion/2014/05/22/hudud-let-the-apex-court-decide/

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