Disclaimer: The views expressed here are solely those of the author in private capacity and do not in any way represent the views of the Legal Ocean or its editors, or any other representatives associated with Legal Ocean.

Asia has had very few constitutions with Asian public participation. Other continents have more public participation.[1] However, in Asia you don’t see one form of legitimacy, there are a lot of different forms of political and legal legitimacy with different powers conferred to the judges in different nations. A Constitution which is imbued with political as well as legal legitimacy will most likely endure.[2] The corollary being those nations which do not have either political or legal legitimacy are more likely to have their constitutions abandoned or re-written.[3] Constitutional legitimacy serves to limit the government in particular ways.

History has shown that there is a need for substantial limits on the expression of popular sovereignty. This is predicated on the fact that there are some inherent features in a constitution that are fundamental to it, including, such as the rule of law, protection of human rights, separation of power, and checks and balances, etc.[4]

There are certain implicit as well as explicit unamendable provisions in the constitutions in Asia. Some take the form of eternity clauses while some take the form of the basic structure doctrine. The Kesavananda Bharti case refers to the basic structure doctrine. Furthermore, there is a doctrine of unconstitutional constitutional amendments which can be used to declare a constitutional amendment which was enacted through constitutional means as unconstitutional, as has been seen in the case of and JY Interpretation No. 499. The author agrees with the judgements given in the cases of Kesavananda Bharti and JY Interpretation No. 499, and also their reasonings.

Examples of the use of the Doctrine in Asia

Examining Asian constitutional orders show that several of them contain substantive limits to constitutional change.[5] It is also interesting to see that constitutional orders in Asia generally embrace the idea of limited popular sovereignty and see merit in limiting the ability to change a constitution.[6] Walter F Murphy argues that through the exploration of the constitutional text, context and legal theory, limitations on valid constitutional change do exist and that their justification depends on the multiple forms they take.[7]

Eternity clauses helped in the stability of the nations. While this is seen as eternity clauses in some constitutions including that of Cambodia, East Timor, Hong Kong, Indonesia, Malaysia and Thailand,[8] there are also constitutions that have recognized unconstitutional constitutional amendments, wherein the judiciary has been given the power to declare any constitutional amendment as unconstitutional even if the said constitutional amendment had gone through all the constitutionally stipulated procedures if it violates the spirit of the constitution.[9]

The Supreme Court of India had initially conceptualized the Basic Structure doctrine in 1973 through the landmark judgement of Kesavananda Bharati v State of Kerala.[10]In this landmark judgement the aimed to put a limit on the constitutional amendment powers as there are some inherent features in the Constitution which cannot and must not be amended. Interestingly, the characteristics of the doctrine were judicially developed including core characteristics such as the Indian Constitution and its supremacy, the secular character of the Constitution, the division of separation of powers between the three different branches, the Constitution and its federal characteristic, the sovereignty of India, etc.[11] While the phrase “basic structure” does not find any mention within the Constitution of India, there is a legal legitimacy of the same which is deeply rooted in the Constitutions text and history.

In Kesavananda Bharti Justice H.R. Khanna notes that any amending body cannot have unlimited power so as to change the inherent fundamental structure of the founding pillars that have supported the Indian constitutional authority.[12] This interpretation by Justice Khanna shows that the constitution cannot create a new constitution as had been questioned by Conrad, but alter the already existing constitution. Hence, what should remain after an amendment which is considered valid, should still be the constitution which possesses the essence and features that were the foundation to it even at its conception.[13]

This basic structure doctrine then seeped into India’s neighbouring countries of Nepal,[14] Pakistan,[15] and Bangladesh.[16] However this doctrine has not been applied in every Asian nation, as seen in the nations of Malaysia, Singapore and Sri Lanka where the Courts rejected the Basic Structure doctrine. The Sri Lankan Supreme Court in the case of Re the Thirteenth Amendment to the Constitution,[17] rejected the applicability of the doctrine in Sri Lanka and took a more cautious and modest approach in reviewing the constitutional amendment in front of them through the lens of procedural scrutiny. 

In Taiwan in the case of JY Interpretation No.499, the Constitutional Court held that there can be no legislation which can amend the constitution if the process through which it is done is clearly grossly flawed.[18] While the amendment sought to the Constitution had an equal status compared to the constitutional provisions, if such a provision alters the fundamental nature of the governing norms and order then such could potentially destroy the foundation of the Constitution and its existence. As such, that amendment will be declared as improper.

Some criticism of Doctrine and Rebuttals

A concern with the doctrine of Basic Structure in India is with regards to several cases being brought before the courts where the courts have used the doctrine to open interpretation and reasonable disagreement.[19] The Indian judiciary has used the doctrine in questions of personal autonomy, property, and meritocracy, while there can be more than one possible interpretation for the same. There is a requirement for some form of checks or limits to the doctrine to advance the commitments to democratic constitutionalism. The basic structure has been criticized as an elastic concept with no unanimity among the judges.[20] However, this has been rebutted claiming that an absence of such a doctrine could confer on the parliament unlimited power which would degrade the democratic values of the nation and bring into question the unison and integrity of the nation.[21]

Interpreting a constitution will always be fraught with controversy as by its nature the very act of interpretation would be a political design of the court. There have been several instances recently where there has been an erosion of democracy due to the issue of constitutional change. Recent incidents have shown authoritarian leaders use constitutional amendments to undermine the democratic order.[22] A problem seen in the case of Thailand, Burma and Pakistan was that apart from the established constitutional centres of power, the three branches, there existed other centres of power, including the military, the monarch, who legitimized their own ways which trumped the constitutional legitimacy.[23] However, the cases of Bangladesh The Seventh Amendment case decided in 2010, Philippines the Habeas Corpus Petition case, and the Pakistan Wantan Party case show how there is a possibility of a constitutional change in a transnational context. Rosalind Dixon notes that it always depends upon the context.[24]

Ultimately what makes the constitutions work depends upon the constitutional adaptability, the responsiveness and relevance of the framework and the belief in the supremacy of the rule of law. There have been instances of constitutional amendments being used for personal gains by the parliament or by the leaders thereby undermining the constitutional order of the nation.[25] As seen in India the Basic Structure doctrine has been used to end abusive constitutional measures that were seen in the mid-1970s.[26] The doctrine helps protect the democracies from democratic erosion,[27] as well as from more expressive constitutional commitments.[28] The doctrine helps limit the power of any branch to amend the constitution and also preserving certain intrinsic fundamental values which should not be touched or replaced from the constitutions.

Conclusion

To conclude, While contextual factors such as politics, democratic transition, judicial independence, etc. all do play a part in the reasoning of the court, the doctrine has gained huge importance in the Asian nations as it helps preserves the inherent features of the constitution. In the author’s view, the courts should have the review to invalidate unconstitutional constitutional amendments.

The Basic Structure doctrine marks a shift in the amending power and also shows that the judiciary can interpret the constitutional provisions and thereby create precedents for the future cases.[29] Not only does this doctrine safeguard the judicial decisions from parliamentary attacks, but it also leads to certain forms of checks and balances on judicial politics. [30] The response to the doctrine of unconstitutional constitutional amendments is determined by looking at the legislative power and power politics during the adoption of the constitution and democratic order and response to the constitutional drafters. The doctrine should be established in constitutions. A way to start would be adopting a limited form of the doctrine which handles and protects only a restricted core set of principles at first. This can then through time evolve and develop further.


[1] Justine Blount, Tom Ginsburg, Participation in constitutional design: Asian exceptionalism, Comparative Constitutional Law in Asia (Edward Elgar Publishing, 2014).

[2] Wen-Chen Chang, Li-ann Thio, Kevin YL Tan and Jiunn-rong Yeh eds., Constitutionalism in Asia: Cases and Materials (Oxford, Hart Publishing, 2014).

[3] Supra 2.

[4] Supra 2.

[5] Supra 2.

[6] Supra 2.

[7] Walter F. Murphy, Merlin’s Memory: The Past and Future Imperfect of the One and Future Polity, Responding to Imperfection: The Theory and Practice of Constitutional Amendment (Princeton University Press, 1995).

[8] Supra 2.

[9] Richard Albert, Nonconstitutional Amendments, Canadian Journal of Law and Jurisprudence, Volume 22 Issue 5 (2009).

[10] Kesavananda Bharati v State of Kerala, (1973) 4 SCC 225: AIR 1973 SC 1461.

[11] Id.

[12] Id.

[13] Sudhir Krishnaswamy, Democracy and Constitutionalism in India: A Study of the Basic Structure Doctrine (Law in India) (Oxford India Paperbacks, 2010).

[14] Andreas Buss, Dual Legal Systems and the Basic Structure Doctrine of Constitutions: The Case of India, Canadian Journal of Law and Society Volune 19, Issue 2 (2004).

[15] Darvesh M. Arbey u. Federation of Pakistan, PLD 1980 Lah. 846.

[16] Anwar Hossain Chowdhury v. Bangladesh, 41 DLR 1989 App. Div. 165.

[17] Re the Thirteenth Amendment to the Constitution, Sri Lanka.

[18] JY Interpretation No.499, Taiwan.                                       

[19] Rosalind Dixon, David Landau International Journal of Constitutional Law Volume 13 Issue 3(2015).

[20] P.P. Rao, Basic Structure of the Constitution, The Alladi Memorial Lectures (1999).

[21] A letter was written by Palkhivala which has been used by M.V. Kamath in the biography  Nani A. Palkhivala – A Life.

[22] David Landau, Abusive Constitutionalism, University of California Davis Law Review Volume 47 (2013).

[23] Supra 2.

[24] Rosalind Dixon & David Landau, Transnational constitutionalism and a limited doctrine of unconstitutional constitutional amendment, International Journal of Constitutional Law Volume 13 Issue 3 (2015).

[25] Id.

[26] Id.

[27] Samuel Issacharoff, Constitutional Courts and Democratic Hedging, The Georgetown law journal Volume 99 Issue 4 (2011).

[28] Gary J. Jacobsohn, The Permeability of Constitutional Borders, Texas Law Review Volume 82  (2004).

[29] Satya Prateek, TODAY’S PROMISE, TOMORROW’S CONSTITUTION: ‘BASIC STRUCTURE’, CONSTITUTIONAL TRANSFORMATIONS AND THE FUTURE OF POLITICAL PROGRESS IN INDIA, NUJS Law Review Issue 1 (2008).

[30] Id.

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