Unravelling the "basic structure" of the Constitution

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As the Constitution has been an important national issue in recent times, the term "basic structure" or "moulik kathamo" has been flying around the country raging storms in teacups. The term "basic structure" made its most recent impact when some amendments made by the Fifth Amendment were declared illegal on the basis that they tried to interfere with the basic structure or basic features of the constitution. Now, the doctrine of basic structure is once again about to decide the fate of a Constitutional amendment - the Thirteenth Amendment (Caretaker Government) - this time having the potential not only to declare an amendment illegal, but also to add a game-changing twist to Bangladeshi politics. While the general perception is that the basic features of the Constitution and the un-amendable provisions in it are listed somewhere in the Constitution itself, in fact the contrary is true. The Constitution does not explicitly make any of its Articles "unamendable", "unchangeable" and so on; as a matter of fact, Article 142, the Article dealing with amendments, states clearly that "any provision thereof may be amended by way of addition, alteration, substitution or repeal by Act of Parliament" provided that the amendment is passed with a two-thirds majority in Parliament. So, if the existence of a basic structure of the constitution cannot be pointed out in the Constitution itself, where did it come from? The straight answer is - the courts. The doctrine or principle that there are basic features in a constitution which cannot be amended, made its official debut in neighbouring India in 1973 in the case of Kesavananda Bharati. An amendment made by the Indira Gandhi administration was challenged in court, which led to the Supreme Court developing the idea that the Parliament's amending powers were not unlimited, but restricted when it came to certain basic features. The doctrine crossed the border to Bangladesh in the year 1989, when HM Ershad's Eighth Amendment setting up four High Courts around the country was challenged. The Supreme Court held that the amendment was an affront to a basic feature of our Constitution - unitary system of government. In the process, the apex court made a list of features which were found to form the basic structure of our Constitution - sovereignty of the people, supremacy of the Constitution, democracy, Republican government, unitary state, separation of powers, independence of the judiciary and fundamental rights. On the face of things, the list looked clear enough to follow and was widely accepted at the time. But then, in 2005, came the High Court judgment in the Fifth Amendment case. The High Court judgment adopted the list of basic features from the preceding Eighth Amendment judgment but insisted on adding to it the features of Bengali nationalism, socialism and secularism. As these features made an entry into the basic structure of the Constitution, significant amendments of the Fifth Amendment such as "Bangladeshi" citizenship instead of "Bangalee" citizenship, "absolute trust and faith in Almighty Allah", were shown the red card (although "Bangladeshi" citizenship was subsequently revived by modification) for inconsistency with the new entrants. Strains in the "basic structure" doctrine start to show when the same Supreme Court over time makes two different lists of what it considers to be the basic features of the Constitution. Furthermore, the possibility remains that given a different time and a different set of facts and circumstances, we might be presented with a new list with additions or subtractions, as the Supreme Court is free under the Constitution to derogate from its own precedents. Another problem with the basic structure doctrine is unravelling itself in the currently on-going Thirteenth Amendment case. The amendment installing the non-party caretaker government has been challenged, one of the premises being that the non-representative character of the caretaker administration contradicts the basic feature of democracy. Now, while some of the constitutional experts have agreed with such a proposition on the basis that an unelected government is allowed to run the country, others have told the court that the caretaker system instead enhances democracy as it ensures free, fair an independent elections. The jurists clearly emphasised different aspects of democracy, one school favouring the representative character that democracy contains and the other favouring the importance of free and fair elections in a democracy. Just like different meanings of "democracy" resulting in different constitutional consequences have been shown to exist, a plethora of meanings are out there for each of the listed basic features. So, unfortunately, just like the Parliament and the people are not guaranteed a stable list of basic features, meanings of the features change depending on which theorist's book is read, thus making the basic structure doctrine a concept too flimsy for a doctrine of its importance. The main premise on which the basic structure doctrine stands is that the Parliament cannot have unlimited powers to amend the constitution. So adopting the doctrine, courts have assumed the role of overseeing amendments and striking them down if they are found to be contrary to a basic feature of the Constitution. But as shown above, there is neither a conclusive list of basic features, nor are there strict interpretations attached to these features to guide the courts. In such a situation, the basic structure doctrine does not simply restrict the unlimited powers of the Parliament, it also has the effect of handing over the unlimited and unwarranted power of striking down amendments to the courts, when the courts were never meant to do the job in the first place. But is there an alternative to the current situation? Should Parliament then have unlimited powers to amend the Constitution, and theoretically be able to do as they wish with the Constitution and, say, establish monarchy in Bangladesh? Certainly not. But rather than the courts being the authority to strike down amendments made by the People's representatives in Parliament, Parliament may instead be required to refer important amendment proposals to referendum, so that the People have the last call on everything constitutional; and so that the words "We the People" at the beginning of our Constitution stay at the heart of our constitutional discourse. The writer, a Barrister-at-law, with Huq & Company, 47/1, Purana Paltan, Dhaka-1000, can be reached at e-mail: s.mahbub@live.co.uk