Doctrine of Basic Structure

Doctrine of basic structure is a judge-made Indian principle stating that a country's constitution has certain basic features that cannot be amended by its legislative body. The amendment of these features will result in drastic changes to the constitution and render it unrecognisable. Hence, amendments to a constitution must not be in conflict with the basic structure of the constitution. Alternatively, a country's legislative body, with strong reasons usually related to public safety, is allowed to amend any provisions in the country's constitution, but the amendments cannot change the basic feature of the constitution.

History

This doctrine was first surfaced in the Indian case of I.C. Golaknath and Ors v State of Punjab and Anrs (1967 AIR 1643, 1967 SCR (2) 762). In that case, there was a family of Henry and William Golak Nath owning a 500 acres of farmland in Jalandhar, Punjab. When the Punjab Security and Land Tenures Act 1953 was enacted, the state government held that the brothers could keep only thirty acres each, a few acres would go to tenants and the rest was declared 'surplus'. The Golak Nath family petitioned under Article 32 of the Constitution of India, on the ground that the 1953 Act denied them their constitutional rights to acquire and hold properties and practice any profession under Articles 19 (f) and 19 (g). They also petitioned that the Act denied them the constitutional rights of equality before and equal protection of the law under Article 14. Finally, they sought that the 17th Amendment to the Constitution of India, which placed the 1953 Act in the ninth schedule, to be declared ultra vires.

By a thin majority of 6:5, the Supreme Court held that a constitutional amendment under Article 368 of the Constitution was an ordinary 'law' within the meaning of Article 13(2) of the Constitution. The majority did not believe there was any difference between ordinary legislative power of the parliament and the inherent constituent power of parliament to amend the Constitution. The majority did not agree with the view that Article 368 of the Constitution contained "power and procedure" to amend, but instead believed that the text of Article 368 only explained the procedure to amend the constitution, the power being derived from entry 97 of the List I of the VII Schedule to the Constitution. Since according to Article 13(3), the parliament could not make any law that abridges the Fundamental Rights contained in Part III of the Constitution, a constitutional amendment, also being an ordinary law within the meaning of Article 13, could not be in violation of the fundamental rights chapter contained in the Constitution of India. Therefore, all constitutional amendments thus far which were in contravention or which had made an exception to fundamental rights chapter of the Constitution were said to be void. In short, the Supreme Court ruled that the Parliament could not amend the Constitution of India to curtail the fundamental rights in the Constitution.

This case was overruled in 1973, in the landmark case of Kesavananda Bharati v State of Kerala (1973) 4 SCC 225. Although this case overruled Galak Nath's case, it also affirmed another proposition also asserted in the case, by ruling that the expression "amendment" of the Constitution in Article 368 means any addition or change in any of the provisions of the Constitution within the broad outlines of the Preamble and the Constitution to carry out the objectives in the Preamble and the Directive Principles. Applied to Fundamental Rights, it would be that while Fundamental Rights cannot be abrogated, reasonable abridgement of Fundamental Rights could be effected in the public interest. In other words, every provision of the Constitution can be amended provided the basic foundation and structure of the Constitution remains the same. In this case, Swami HH Sri Kesavananda Bharati, Senior head of "Edneer Mutt" – a Hindu Mutt situated in Edneer, a village in Kasaragod District of Kerala, challenged the Kerala government's attempts, under two state land reform acts, to impose restrictions on the management of its property.

Although the state invoked its authority under Article 21, an Indian jurist, Nanabhoy Palkhivala, convinced the Swami into filing his petition under Article 26, concerning the right to manage religiously owned property without government interference. One of the issues in this case is that whether amendments to the Constitution of India under Article 368 were applicable to the fundamental rights enshrined in the Constitution.

According to Sikri CJ, reasonable curtailment of fundamental rights in Part III of the Constitution of India could be carried out in the name of public interest. However these rights could not be repealed. Every provision of the Constitution was open to amendment provided the basic foundation or structure of the Constitution was not damaged or destroyed as the expression "amendment of this Constitution", in Article 368 means any addition or change in any of the provisions of the Constitution within the broad contours of the preamble, made in order to carry out the basic objectives of the Constitution. This case is the landmark case that outlined the Doctrine of Basic Structure.

Reception and applications

Initially, this doctrine is rejected by the Malaysian courts. The general reasons this doctrine was rejected include that the Federal Constitution and the Constitution of India have many differences, especially regarding the presence of a Preamble. Next, the wording of the Federal Constitution, that is in Article 159 concerning amendments to the Constitution, is such that the Article only prescribes procedures for the passing of the amendments in the Parliament. There is no provision regarding directives to state policies.

This was shown in the judgment of the former Federal Court in Loh Kooi Choon v Government of Malaysia [1977] 2 MLJ 187. In this case the appellant had been arrested and detained under a warrant issued under the provisions of the Restricted Residence Enactment. The appellant had not been produced before a Magistrate within twenty-four hours of his arrest. He claimed damages but it was held that no action could be brought against the police officer as he was acting in compliance with a warrant issued by a competent authority. The appellant appealed but before the appeal was heard the Federal Constitution was amended by Act A354/76 which provided in effect that Article 5(4) of the Constitution shall not apply to the arrest or detention of any person under the existing law relating to restricted residence and that this amendment shall have effect from Merdeka Day. It was argued that the amendment was unconstitutional. Article 5(4) is within Part II "Fundamental Liberties" of the Federal Constitution

One of the issues was whether the Parliament can amend the provisions of Article 5(4), which is about the requirement to produce an arrested person in front of a magistrate within 24 hours from the arrest. The counsel for the appellant argued that the aforementioned amendment to the Federal Constitution was unconstitutional. The learned counsel also argued that amendments to the fundamentality of the Federal Constitution should be avoided. Raja Azlan Shah FJ, after examining the various methods laid in the Constitution to amend it, said that fundamental rights, which are different from ordinary rights, can only be amended in specially prescribed ways. His Lordship proceeded to say that the framers of the Constitution only intended to prevent the fundamental rights from being affected by ordinary legislations.

However, there was no clear intention to prevent the fundamental liberties from being changed by amending the Constitution. His Lordship went on to explain that the Federal Constitution as the supreme law, which cannot be changed by ordinary ways, is different from ordinary legislations and so cannot be inconsistent with itself. In short, the fundamental liberties in Part II, as constitutional guarantees, can only be amended by constitutional means instead of ordinary legislations.

After referring to Sikri CJ in Kesavananda Bharati, Wan Suleiman FJ pointed out that the restriction on power to amend the Constitution based on the Preamble did not exist because there is no Preamble in the Federal Constitution itself. Furthermore, His Lordship explained that if there is any restriction to amend the fundamental liberties in Part II, the restriction would have been set out in Article 159. Finally, the former Federal Court rejected the appellant's appeal.

The decision in Loh Kooi Choon was affirmed in the case of Phang Chin Hock v Public Persecutor [1980] 1 MLJ 70. Here, the appellant had been convicted of the offence of unlawful possession of ammunition and sentenced to death. He was tried in accordance with the Essential (Security Cases) Regulations, 1975, which were held to be invalid in Teh Cheng Poh v Public Prosecutor [1979] 1 MLJ 50 but were subsequently validated by the Emergency (Essential Powers) Act, 1979. In the appeal by the appellant it was argued that (a) any Act of Parliament which amends the Constitution, as is allowed by Article 159 of the Constitution, is valid only if consistent with the Constitution and that any provision in it which is so inconsistent, is to the extent of the inconsistency, void; (b) even if the amendments made by Parliament in accordance with article 159 may be inconsistent with the existing provisions of the Constitution, the court should read into the Constitution implied limitations on the power of Parliament to destroy the basic structure of the Constitution; (c) even if the Emergency (Essential Powers) Act, 1979 is valid, sections 2(4), 9(3) and 12 thereof are void as they destroy the basic structure of the Constitution.

Among the issues was whether the Parliament could make amendments to the Federal Constitution that were inconsistent with the Constitution itself. Next was whether the Parliament could make amendments that destroy the basic structure of the Constitution, should the Parliament had the power to amend the Constitution in any way they think fit. Finally, whether sections 2(4), 9(3) and 12 of the Emergency (Essential Powers) Act 1979 (Act 216) destroyed the basic structure of the Federal Constitution and therefore void.

The counsel for the appellant had referred to Indian cases such as I.C. Golak Nath and Kesavananda Bharati to strengthen his argument that Parliament could not amend the Federal Constitution such that the amendments destroy the basic structure of the Constitution.

The counsel submitted a list for the basic structure in the context of the Federal Constitution:

a) Supremacy of the Constitution;

b) Constitutional Monarchy;

c) The religion of the Federation is Islam but other religions can be practiced harmoniously;

d) Separation of power between three branches of the Government;

e) Federal characters or federalism.

The former Federal Court, speaking through Suffian LP, followed Raja Azlan Shah FJ's position in Loh Kooi Choon, that is to say there existed differences between the Federal Constitution and the Constitution of India in the context of protecting the basic structure. The relevant difference here was the non-existence of a Preamble in the Federal Constitution, that is to say no directive principles in state policies. Another notable difference was that the Indian Constitution was drafted by constituent assembly while the Malaysian Constitution, its approval had involved the Reid Commission, the British Parliament, the Federal Legislative Council and respective state legislative councils. The court said that fear of abuse of power to amend the Constitution was not a valid reason against the existence of such power. Thus the court concluded that the Parliament may amend the Federal Constitution in any way provided the form of amendment prescribed in the Constitution was adhered to.

Thus from the cases of Loh Kooi Choon and Phang Chin Hock, the doctrine of basic structure was initially not accepted by Malaysian courts.

Recent position

This doctrine was recently being accepted by Malaysian courts, signalled by the landmark case of Sivarasa Rasiah v Badan Peguam Malaysia & Anor [2010] 2 MLJ 333. In this case, the appellant, an advocate and solicitor and a member of Parliament, wished to serve as an elected member on the Bar Council, the governing body of the Malaysian Bar. However, section 46A(1) of the Legal Profession Act 1976 (Act 166) disqualified amongst others a member of Parliament from being a member of the Bar Council or a Bar Committee. The appellant challenged the constitutionality of section 46A(1) of the Act on the grounds that the section violated his rights of equality and equal protection as guaranteed by Article 8(1) of the Federal Constitution. The appellant also claimed that the section violated his right of association as guaranteed by Article 10(1)(c) of the Constitution; and that it violated his right to personal liberty as guaranteed by Article 5(1) of the Constitution. The appellant's sustained submission was that the fundamental rights guaranteed under Part II of the Constitution were part of the basic structure of the Constitution and that Parliament could not enact laws, which included Acts amending the Constitution, which violated that basic structure. The appellant further argued that the inevitable effect or consequence of section 46A of the Act was to render his constitutional right to serve on the Bar Council ineffective or illusory and that he had therefore been deprived of his constitutionally guaranteed right to personal liberty under Article 5(1) of the Constitution.

One of the issues raised by the appellant was that the section 46A violated his fundamental rights under Part II of the Federal Constitution, thus the Act in question had violated the basic structure. The counsel for the appellant submitted that the former Federal Court in Loh Kooi Choon had overlooked the supremacy of the Constitution when the court based their judgment in Vacher & Sons Ltd v London Society of Compositors [1913] AC 107. It must be reminded that Britain applied the supremacy of the Parliament doctrine as they do not have written constitution. While delivering judgment of the Federal Court, Gopal Sri Ram FCJ approved this argument's merit, and said that the way the Federal Constitution was construed meant that there was a basic structure. However, the exact feature of the basic structure, in Malaysia's context, was yet to be decided and had to be determined by a case-by-case basis. It should be enough here to say that fundamental liberties in Part II of the Federal Constitution, which are enforceable in court, formed a basic structure of the Constitution. Even though the Federal Court rejected the appellant's appeal, it was a remarkable case in that the Court began to accept the Doctrine of Basic Structure.

Application in Commonwealth countries

The Basic Structure Doctrine, being originated from the Republic of India in Kesavananda Bharati, whose case was often cited as persuasive authorities in courts of Commonwealth countries, especially when the issues raised were related to fundamental liberties or rights prescribed in a country's constitution. This section is meant to compare the application of this doctrine in selected Commonwealth countries.

Republic of Singapore

The doctrine was and is not recognised by Singaporean courts. In Teo Soh Lung v Minister for Home Affairs [1989] 1 SLR 499, the applicant was arrested by officers from the Internal Security Department (ISD) on 21 May 1987 and detained under a detention order valid for one year with effect from 20 June 1987. This order was made under section 8(1) of the Internal Security Act (Cap 143) (ISA). On 26 September 1987, the detention order against the applicant was suspended subject to the execution of a bond and compliance with certain conditions. On 19 April 1988 the minister, in exercise of his powers under section 10 of the ISA, revoked the suspension and the applicant was again detained. The applicant then applied for a writ of habeas corpus, which application was heard and dismissed by the High Court. The applicants appeal to the Court of Appeal was allowed on the ground that there was not sufficient evidence of the Presidents satisfaction as required under section 8(1) of the ISA. The applicant was released but re-arrested almost immediately under a new detention order.

Parliament later made certain amendments to the Constitution of the Republic of Singapore, including Article 149 and to the ISA. The applicant again applied to the High Court for a writ of habeas corpus. She argued that nothing in Article 149 of the Constitution as amended prevented the court from reviewing the legality, rationality and constitutionality of the new or prior detention orders. It was also argued that her detention was made for improper purposes and in a manner which was illegal, irrational and unconstitutional and beyond the scope of the powers conferred by the ISA and was hence null and void. It was argued that Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147 enunciated the correct principles to be applied. Section 8(1) of the ISA, it was argued, had no application to a decision made or act done otherwise than in pursuance of the power conferred by the ISA. The court was accordingly not prevented from applying legal principles enunciated by the Court of Appeal in Chng Suan Tze v Minister of Home Affairs [1989] 1 MLJ 69. The applicant also raised the argument that the purported amendments to art 149 of the Constitution were contrary to the supreme law of the Constitution and were not valid amendments.

Alternatively, the amendments to section 8 of the ISA did not come within the legislative powers conferred by Article 149 as amended since the article should be given a strict interpretation. The amendments were therefore void. Further arguments made were that as the amendments were passed to deprive the applicant of the fruits of her victory in the previous case, to authorize her illegal detention and to retrospectively deny her the right to appeal to the Privy Council, the amendments denied her right to equal protection of the law and were accordingly void under Article 12. The amendments were alleged to violate the separation of powers between the various branches of government, by usurping the power of the independent judiciary for the impartial determination on the question as to whether the executives decision to detain the applicant was in fact based on national security considerations. The amendments were a direct disposal of the applicants proceedings by the legislature itself, and were therefore judicial acts and not law within Article 5(1). Parliament was also limited in its power to amend the constitution and had overstepped the limits by amending the basic structure of the Constitution.

The counsel for the applicant submitted that the Singaporean Parliament had not been empowered to amend the Constitution in a manner such that it destroys the basic structure of the Constitution. FA Chua J, after referring to some Malaysian cases such as The Government of the State of Kelantan, Loh Kooi Choon and Phang Chin Hock, concluded that the doctrine was not applicable to the Singaporean Constitution. The reason was because of the difference in making of the Constitution of India and the Singaporean Constitution. To sum up, the court did not think that the Parliament had violated the basic structure of the country's Constitution.

Pakistan

The doctrine was initially not recognised and accepted by Pakistani courts. However, in Pakistani Lawyer's Forum v Federation of Pakistan PLD 2005 SC 719, the Supreme Court while deciding the constitutionality of 17th Amendment to the Constitution, decided that the Basic Structure Doctrine is acknowledged to be in existence in the Constitution, however, there are limitations on the power of Parliament to make amendments. Also, the court had observed that they can only strike down an amendment if the amendment was not made according to the prescribed procedure in the country's Constitution.

References

Haseeb Ahsan Javeed. (2015, September). Basic structure and the 1st constitutional amendment. Pljlawsite. Retrieved from http://www.pljlawsite.com/2015art54.htm

The Malaysian Bar. (2010). Preserving the integrity of the Constitution. Retrieved from http://www.malaysianbar.org.my/speeches/preserving_the_integrity_of_the constitution.html

References

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