Introduction: Concerning necessity and contingency
Let me first explain the purport of my apparently tautological title. By asking whether the “basic structure doctrine” is a basic structure doctrine, I am asking how broadly applicable is the basic structure doctrine (hereafter “BSD”)? I recognise here that the BSD by no means exhausts the discussion of unconstitutional constitutional amendments, as is apparent from this volume as a whole.
Nonetheless it is of fundamental importance. The question of the applicability of BSD appears to reduce to two possible positions.The first is that BSD is a necessary phenomenon: it is an inevitable consequence of having constitutional and democratic government, as opposed to some other system of government. On this view a constitutional amendment could not survive the test of constitutionality if (at least on this but also possibly other grounds) it destroyed what we understand as a system based on the rule of law, in which the judiciary is independent and competent to rule on the constitutionality of laws and acts.1 For example, a constitutional amendment that designated all judges as civil servants obedient to the command of the government2 rather than the law, would, on this view, destroy the very essence of what we mean by “the constitution” and “constitutionalism.” On this view, BSD would be a doctrine of the basic structure of potentially every constitution, embodying, that is, constitutionalism as we understand it - namely a system in which the constitution is law and secures adherence to the rule of law.
A second, quite different view, would be that BSD is not a necessary doctrine, but one that is contingent as a response to particular local constitutional history in certain cases. If, as argued in this chapter, the identification of BSD depends on
1 See, for example, Liyanage v The Queen [1967] AC 259, Privy Council; Mohamed Faizal bin Sabtu v Public Prosecutor [2012] 4 SLR 974, High Court, Singapore.
One clear utility of the idea of a basic structure is that, distinct from limiting the power of constitutional amendment, it may provide a solid and useful basis for judicial review of ordinary legislation. This chapter is not addressed to basic structure in that (I suggest, rather obvious) sense.2 If this seems unlikely, one could examine Indonesia’s Judiciary Law of 1970, which had precisely such effect, although it was not framed as a constitutional amendment.
DOI: 10.4324/9781003097099-13
a view of the particular constitution, not constitutions in general, then it would not be a doctrine basic to constitutional structure per se.
Such is the dilemma I wish to attempt to resolve. I propose to call these two views, for simplicity’s sake, the “necessary” and “contingent” views of BSD. The relevance of this question to a discussion of the politics of unconstitutional constitutional amendments[890] [891] is clearly that, if the BSD is contingent as opposed to necessary, then its incidence and its content depend on the context in which the constitution is being interpreted. If on the other hand the BSD is necessary, then that would still be a doctrinal judgment having contextual impacts of which the judiciary would be unlikely to be unaware.
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