BSD and comparative law
From this case, I conclude that facts of constitutional history must point to some kind of popular or at least legitimated adoption of the constitution before the BSD can be regarded as salient.
If it were otherwise, then a problem would arise in that a body, namely parliament, that is created by the constitution, could, without any limitation, destroy the very constitutional order on which its own existence depends. This argument is repeatedly used in justifying the BSD; but in my case study I argue it has no application in a case where parliament itself is the constitution-maker. A highly relevant consideration is whether parliament itself has the entire power to amend the constitution. This is not so in many cases, where, for example, a referendum or the assent of states, or other bodies, may be required to complete the process of constitutional amendment.[916] The fundamental point, and the beauty of the BSD, is that “the people” cannot act in vain by enacting a constitution that contains the worm of its own destruction, an unlimited amendment provision. They cannot have intended that the power of constitutional amendment could be used to destroy that which they had created. In this sense, the BSD only makes sense if it is in some sense an act of “The People.”[917]Another form of contingency here is, as I have suggested, the actual content of the basic structure itself, which will obviously differ from case to case. The fact that it differs considerably is to my mind evidence that the BSD itself must be contingent. If not, then what is it that a universal, necessary BSD as basic structure is aimed towards? It seems awkward and implausible to say that the BSD is always necessarily applicable, and yet the actual content of the basic structure so protected will differ considerably from case to case.
Let us take an example.
Federalism may be part of the basic structure of the Indian, American, Pakistani, Malaysian, Australian, or Canadian constitutions; but it is not part of the constitution of the UK, the Philippines, Thailand, or Japan. Indeed, the nature of the constitutional order will be quite different according to whether the constitution is federal, and according to the way in which it is, or the process whereby it became, federal.Similarly, Matthew Nelson in his paper discusses the possibility that Islam is part of the basic structure of Pakistan’s constitution.[918] We could speculate, as the courts in Bangladesh and Malaysia have done, whether the same is true in those constitutional systems.[919] But it could hardly be true of Canada or Australia, nor is even the idea, that there has to be a religious principle of some kind at the base of the constitutional order, part of basic structure viewed generally. Some constitutions embrace secularism as a basic feature. This matter, like federalism, is purely dependent on contingency. In a similar vein, if the bill of rights in a constitution is part of the basic structure, it follows that a different set of rights will be entrenched in different cases; and if, as in Australia and Canada, there is no bill of fundamental rights in the constitution itself, then they cannot form part of the basic structure.
An even more difficult problem arises, however, with governmental structures. If the structure of government is part of the basic structure then it follows that this cannot be changed by an ordinary constitutional amendment that turns it into a different structure. For example, we could not turn a parliamentary into a presidential system or vice versa without adopting a completely new constitution. Nor could we turn a federal system into a unitary one, or vice versa. In fact, large numbers of Commonwealth states would on this view be unable to convert their system of government from a Westminster to a non-Westminster system, and would be stuck forever in a post-colonial constitutional trap unless they jettisoned their constitutions completely.[920] But why should they have to do that? It seems quite implausible that they would, and in fact almost half of such Commonwealth states have done exactly what should be contrary to the BSD without anyone apparently imagining that this change was unconstitutional.
Fundamentally, states are in my view entitled to change their system of government if they wish, and I see no strong policy consideration to the effect that they should not, assuming that the outcome is a democratic system of government. In terms of comparative constitutional systems, there are many ways in which they differ fundamentally; parliamentarism, presidentialism, and constitutional monarchy present just three possibilities that speak to basic structure. Of course, some such changes may be seen as good and others bad, and they will always be controversial. But to preclude the debate by saying that all such changes effected by constitutional amendment are by definition unconstitutional because they destroy the structure of the existing constitution seems almost perverse.Now, there be may an exception here, in that perhaps a federation should not be allowed to abolish the rights of its constituent states without their consent: a proposition that seems axiomatic, although it has not always been observed. Conceivably, a federation should not alter its constitution in any manner detrimental to states or even a single state without the consent of all. Here, however, I am not sure that the answer lies in BSD, but rather it may lie in whatever “foedus” or treaty preceded the federal constitution, which is to say that this is a question that might well arise in international law rather than national constitutional law, which may or may not offer sufficient protection to a federal subject.[921] Of course, one way of dealing with this is for the argument to take the form of a clear constitutional rule or convention requiring consent of the federal subject/ subjects to its/their rights being abolished or restricted.[922]
From this it seems to follow that in the BSD governmental structures need to be handled in a different manner from other issues such as the separation of judicial power or fundamental rights.
13.5