INTRODUCTION 1

Etudes

INTRODUCTION 1.1 Background Despite the fundamental importance of constitutions, they change. In most instances few of those involved in the process of making a constitution who are acquainted with this process will be available when a country desires to either review its current constitution or draft a new constitution and yet such persons are necessary because they will have had previous constitutional reform experience in their own/other country, or will have a good idea of the long term implications and impact of the decisions made during the development or reform process. In Europe constitutional change mainly features the changing of the explicit literal text of the constitutional document, or by way of changing the meaning and content of the constitution while leaving the constitutional text unchanged or unmodified. As years go by, amendments have been made to Constitutions of different countries. In Africa mainly the opposition in different states has often tussled with the ruling party over matters of the Constitution. For example in South Africa the opposition party Democratic Alliance makes a habit of accusing the governing party of flouting the supreme law of South Africa, and has warned of dark times if it is allowed to change it unilaterally.In Uganda, the 1995 Constitution was amended in 2005 in order to remove the presidential term limits in controversial circumstances with uproar from members of the opposition, political activists and different civil society representatives. Constitutions change with time and this change can sometimes occur outside of constitutional law. In East Africa some Constitutions have been wholly amended such as Ugandas acrimonious history saw the former President the late Dr. Milton Obote repealed the 1962 constitution in September 1967, and forcefully instituted a new HYPERLINK http//www.buganda.com/const67.htm Republican constitution on the nation, and went ahead to proclaimed himself President without first announcing an election. Historians have described the act of abrogation of the Constitution as an assault on constitutionalism. The consequences of such above modifications to Constitutions outside of constitutional law have marked a significant negative effect in the democratization trends of the countries where they have been made. For countries such as Uganda, modifications on constitutional provisions to lift presidential term limits has enabled the incumbent president to stay in power for long and therefore this country has continued to suffer regime survival and regime longevity politics that is undermining effective governance. The aftermath of such actions above on constitutional law is that it has presented the constitution as a not sacred and respected document. The need to avoid such consequences has led to the development of safeguards to the change of structural provisions in the Constitution. This has been done by including of some fundamental provisions in Constitutions that are unamendable regardless of the times and circumstances. 1.2 Statement of the problem A key distinguishing feature of a Constitution from ordinary legislation is that it is the fundamental law of the land and all other laws are subordinate to it. In it are enshrined clauses with expectations to be upheld for eternity. Constitutional reforms undertaken in different countries have sometimes been extended to making key changes to what was meant as eternal and fundamental clauses in the constitutions. In some instances this has led to undemocratic outcomes emerging from such changes and modifications to the Constitutions. Objectives of study To analyze constitutional reform within the limits of constitutional law as has been undertaken across the world in different continents such as Africa, Asia and Europe and review the implications and impact of the outcomes of such constitutional reforms. Research Questions 1. Under what circumstances, if any might Constitutional amendments be deemed to be unconstitutional 2. What is the history and origin of the Basic Structure Doctrine and, 3. What is the relevance of the Basic Structure Doctrine in contemporary Constitutional law 1.5 Literature Review Elster states that a key distinguishing feature of a Constitution from ordinary legislation is its stringent amendment procedures. This is coupled in most jurisdictions with the stipulated procedure for its amendment and little regard of the outcomes of the modifications or changes to the Constitution. The issues that have dominated the debate around the phenomenon of Constitutional Amendment have varied from process, content of text for amendment, moment in time, outcome of amendment, power and democracy. The discussions on the phenomenon are an indulgence into concepts such as Constitutionalism, unconstitutional constitutional amendments, basic structure doctrine, politics, colonialism, representation, rule of law, rule by law, power of numbers of party members in Parliament and choice. The scope of this study is Constitutional reform through amendments and a review of literature on it is divided into three thematic subsections to consider the issues tackled in this study. First I will consider the theoretical scholarship on Constitutionalism and Democracy. Secondly, divulge into a broader regional perspective of Constitutional Politics in Africa and the world. Finally, I look into the scholarship pertaining to issues on Constitutional Reform across the world. 1.5.1 Constitutionalism and Democracy Odoki states that Constitutionalism recognizes that sovereignty resides in the people of a country and power must be exercised in their interests and ultimately subject to their control. A constitutional scholar, Montesquieu, stated that constant experience shows that every man vested with power is liable to abuse it, and to carry his authority as far as it will go. To avoid this abuse, it is relevant from the very nature of things that one power should be a check on another. Constitutions are made at a point of fundamental political change in a given society, signified by the attainment of independence, the end of hostilities after a war, the merger of two countries or the split one, or the end of a successful revolution. The framers of a constitution should therefore have this history of constitution making context of the state in mind as they take on the task of making a Constitution for a country. They must identify the root causes of the problems experienced in the old order with no constitutional rule in some instances and devise solutions which address the peoples concerns, views, values and aspirations for the future in the revised or new established constitutional order. Therefore involvement of the people in constitution-making is important in conferring legitimacy and acceptability to the constitution. However, the mere existence of a constitution is not proof of a commitment to the principle of constitutionalism. But it should be that it is at all times the basic law and when any other law contravenes it, it shall be void to the extent of such inconsistency. Mesihburger argues that although we typically associate constitutional government with democracy, almost all states have some form of written or unwritten Constitution, many authoritarian states have constitutions that would seem in theory to guarantee freedoms and some level of democracy, but which are ignored in practice (called faade constitutions). In some countries these constitutions will simply be revised, while in others an entirely new document will be constructed. Landau puts up the notion that safeguards have been created to safe guard the change of structural provisions in the Constitution. In this regard as an alternative, courts have been empowered to strike down amendments that violate the core principles of the constitutional order. Barak cites the judgment of the Constitutional Court of the state of Bavaria which is well known in this context that states the nullity of a provision should not be negated just because the provision itself is part of the Constitution. Barak argues that there are constitution rules which are so fundamental, and are a manifestation of the supraconstitutional law, to the extent that they bind the drafter to the Constitution himself other provisions which are not of such a high status and conflict with these rules can be annulled. Karlsson gives the example of individuals holding constitutional rights in virtue of being a citizen of a constitutional state, while you have human rights, as they are commonly understood, because you are a human being. As such human rights are of a high status but constitutional rights to citizens can be annulled or restricted. Many of the constitutional changes witnessed throughout Africa have to do with individual rights and liberties. Much as issues of human rights were central to the constitution-making process in most countries across the globe that is in Europe Asia and, Africa however in the world generally the processes of amending provisions in constitutions concerning human rights have often been politicized to serve the interests of those in power. Constitutional amendment processes are therefore a basis of understanding a countrys appreciation of democracy. Furley and Katalikawe, have argued that the prevalent view of drafting constitutions in Uganda has been that if one could come up with an adequate constitution, it would provide a basis for good and democratic governance. 1.5.2 Constitutional Politics in Africa and the rest of the world The justification for the existence of most constitutions is founded on the fact that they have been democratically established. Roznai proponents the theory of great constitutional moments, in which he highlights that constitution making takes place at particular historical moments such as for the British it followed the reform acts of the nineteenth and early twentieth centuries, the conventions of the French and American revolutions or the constitutional assemblies of the post-1945 and post-colonial period, have been exercises of democratic politics that have transformed earlier conceptions of democracy. Roznai further identifies a number of circumstances that have been identified to induce Constitution making. A discussion of them starts at the instance of social and economic crisis, looking at the case of the French Constitution it was not an effect of the revolution but rather its cause, secondly a revolution, on the African continent it comes down to a regime collapse in a 1996 case the Constitutional court of South Africa on the making of south Africas Constitution stated, the tenor and spirit of the Constitution when viewed historically and teleologivally, is that the Constitution is not simply some kind of statutory codification of an acceptable or legitimate past. It constitutes a decisive break from a culture of apartheid and racism to a constitutionally protected culture of openness and democracy and universal human rights Laibuta cites another example in the Kenya Constitution amendment after the election violence 2007- 2008. Other circumstances warranting inducing Constitution making include fear of regime collapse, defeat in war example was Germany after the first and second world war, reconstruction after war then lastly creation of a new state. Baranger argues that in constitutional politics power players are key in constitutional reform and when it comes to amendments there is always a question of who has the authority to make amendments. Some scholars have termed this as the theory of constituent power. Usually the executive that has the power to make the Constitution has the power to amend it too. A look at Ugandas Constitution from its preambles states that power belongs to the people and they shall exercise it in accordance to the will of the people this is intended to be inclusive of the power to reform the Constitution. There are so many debates as to how far the power is vested in the people. Busingye takes on Article 1 that bestows all power to the people of Uganda in accordance with the Constitution. He emphasizes that as far as the Uganda 1995 Constitution represents the will of the people of Uganda its an illusion of the people of Ugandas hope. Further adding that however it would appear that the Constitution does not, in fact have the supremacy it claims for itself, it is not the ultimate source of power or authority in contemporary Uganda, but simply one of the devices by which the NRMs grip on power is strengthened and perpetuated. Constitutional scholar Montesquieu on exercise of power stated that, Constant experience shows that every man entrusted with power is bound to abuse it, and to carry his authority as far as it will go. To prevent this abuse, it is necessary from the very nature of things that one power should be a check on another. Feldman argues for the relevance of the Constitution lying in the power balance, as being able to provide for the peaceful exercise of power in accordance with the rule of law. The constitutional history of Africa is an extremely good case study of the myriad difficulties that most post-colonial African states have experienced and continue to face in the process of self-discovery on the path of democracy as new states established. Potentially, the unending conflicts and civil wars in most of the countries on the African continent have been orchestrated by the desire to establish constitutional regimes or cause change to constitutional regimes. Mbodenyi fronts the view that, the emerging independent African states of the 1960s proclaimed their commitment to democracy, good governance and respect for human rights. This, however, turned out not to be the case. Instead, in a short while after independence, the constitutions of most, if not all, of the emerging states were soon subjected to numerous amendments, enacted in a manner that watered down the essence of constitutionalism and democratic governance. And Ruling parties which had become intolerant to opposition politics stifled democracy and sacrificed constitutionalism on the altar of political greed. For example, in 1982 Kenya became a de jure one party state following the enactment 2A in its Constitution. Most post-independence African states retained some archaic colonial laws after independence and also cherished the irresponsible practice of frequent constitutional amendments, aimed at accommodating the whims of the ruling class. Constitutions have been transformed and changed through political acts. Such was seen in military coups in Uganda during the Amin era of Decrees, one party state, personal rule and other forms of authoritarianism and dictatorship. Constitutional politics scholarship in Africa thrives on the study of the political model where the interactions of political actors may themselves give rise to constitutional amendments even if those amendments do not abide by the constitutionally enshrined procedures for amending the Constitution. However from most scholars as discussed above the role that different political actors play can never be negligible. Hardin highlights this when he says, Any constitutional agreement, whether in a dictatorship or democracy, involves an agreement among powerful forces in the society. 1.5.3 Constitutional Reform in International Constitutional law Scholars in Britain have debated the meaning of Constitutional reforms to the Britain Constitution and their effects on the way British constitutionalism is conceptualized and articulated. Delaney proposes two competing normative and descriptive theories that structure these constitutional debates political constitutionalism and legal constitutionalism. Political constitutionalism finds its support in representative democracy and republicanism and gives rise to institutional fidelity to Parliament and the doctrine of parliamentary sovereignty. Legal constitutionalism, in contrast, identifies the primacy of rights protection and the dangers of excessive democracy legal constitutionalists maintain that external limitations must exist on Parliament, and, generally speaking, they focus their attention on the role of courts and judicial review. In the literature, most reforms are assessed by their perceived connections to either a broader political or legal constitutionalist framework. Legal constitutionalists maintain that constitutional goods are best guaranteed through the articulation of rights-protecting fundamental law, a law that stands superior (Constitution) to and apart from daily political machinations and to which all governmental institutions are bound, primarily through the mechanism of judicial review. In contrast, political constitutionalists argue that resting ultimate authority in a democratic parliament better achieves the constitutional goods of rights and the rule of law, by protecting values of democracy and republican nondomination. Landau expresses a fear in the course of making amendments, of using constitutional tools (like amendments) to undermine democracy. Powerful incumbent presidents always move in a general direction of steering constitutional change so as to hinder the removal of them from power. For example in Eastern Africa, this issue also arose in the debate surrounding the constitutional amendment in Uganda in 2005 to scrap term limits but this is justifiable by the fact that the amendment was done within the stipulated democracies of Parliament approval and sovereignty having consented to the amendment in line with Political Constitutionalism. Opiyo, Bainomugisha and Ntambirweke have argued that the post 1995 constitutional amendments were in their nature no different from the immediate post-independence abrogation of the constitution. They were manipulative and aimed at perpetuating the rule of the powers of the day. There has thus arisen a need to create safeguards in the course of designing constitutions, to have provisions which make it more difficult to change sensitive structural provisions that can be tampered with by this kind of abusive constitutionalism. The alternative could be to empower courts to strike down proposed amendments that violate the core principles of the constitutional order as this would be in harmonization with legal Constitutionalism. 1.5.4 Conclusion Constitution reform has nuanced debates on Constitutional topics therefore my research on constitution reform will certainly not be an abstract academic exercise. This is because the twenty-first century has presented ample opportunity from constitution building in Iraq and Afghanistan to the Arab Spring. This has also extended to related change in Egypt, Libya, Tunisia and more recent Constitution Amendments in Burundi and Rwanda during their post-election periods. These new constitutional processes and regimes demand attention they present the possibility of far-reaching democratic expansion. Methodology 1.6.1 Research Design The research was qualitative owing to the fact that the study aimed at answering the questions regarding the constitutionality of constitutional amendments in terms of process and its outcomes. The qualitative research method employed was reviewing of secondary data. 1.6.2 Study Area and Population The study area focused on Constitutional law globally because constitutions are national documents for different countries in the world. 1.6.3 Data Sources The research was carried out using secondary data. Secondary data was collected from existing relevant literature from the libraries in the form of text books, journals, articles, reports, dissertations and the internet. 1.7 Significance of the Study Constitutional reform is one of important processes/method/tools used in Uganda and other countries to promote good governance. It is hoped that the findings of this research might positively influence how governments design Constitutional reform policies and undertake/ implement them. 1.8 Limitation of the study The constitutional reform area is still underdeveloped because of the politicking of matters to do with it. 1.9 Scope of the Study The study focused on unconstitutional constitutional amendments and democracy in Constitutional law. 1.10 Overview of the Chapters Chapter One Introduction This Chapter outlines the Background to the study, problem statement, objectives and research questions, literature review, methodology, significance of the Study, limitation and scope of the study. Chapter Two Theories and Concepts of Constitutional Amendments This chapter looks at the sources of the philosophy of constitutional amendment as a principle in Constitutional law. Herein the concepts of constitutional amendment will be considered as developed by various scholars of Constitutional law. Amendments to the Constitution can sometimes be carried out outside constitutional law as such the principle of unconstitutional Constitutional Amendments arises as a consequence of such will also be analyzed. Chapter Three Origin and development of The Basic Structure Doctrine (1952 2000) This chapter focuses on relationship and importance of the views and aspirations of the people in a country during the course of making a Constitution. In here I will also consider how these influence the content of a Constitution eventually. This Chapter will look into what different scholars have had to develop and express about the concepts of the Basic Structure Doctrine. Chapter Four Contemporary Relevance and Application of the Basic Structure Doctrine Selected Cases (2000 Present) This Chapter sets out to re-examine the contemporary relevance of the Basic Structure doctrine in the developing and changing trends of constitutional law. Since the basic structure doctrine is a judge made doctrine a detailed analysis of the role of courts in constitutional law specifically in the application of the doctrine of Basic stricture doctrine in selected cases of difference countries will be discussed in this chapter. Chapter Five Conclusions and Recommendations This Chapter will draw conclusions from the findings of the study in regard to the analysis of the circumstances that render a Constitutional amendment to be deemed unconstitutional, start of the invention of the Basic structure doctrine and how this concept has evolved over the years across various jurisdictions and in different legal framework and diverse political environments. It will end on the note of dissecting the relevance of the Basic Structure Doctrine in contemporary Constitutional amendment law and recommendations for best practices in undertaking constitutional reform. CHAPTER TWO CONSTITUTIONAL AMENDMENTS THEORIES AND CONCEPTS 2.1 Introduction This chapter gives an overview on the originality of the concept of constitutional amendment, how it developed and its influence on the evolvement of Constitutional law. The development of Constitutional amendment herein will be discussed as highlighted by various scholars of Constitutional law. In some instances legislators carry out amendments to the Constitution clearly not within the ambits of constitutional law this gives rise to the principle of unconstitutional Constitutional Amendments. 2.2 Origin of the Constitution and Constitutionalism A constitution is defined as the collection of supreme principles and rules, ideally presented in a written legal document, which establish and set up guidelines for the states basic organizational arrangements and practices and represents the nations most enduring beliefs. It can also be defined as the fundamental and organic law of a nation or state that establishes the institutions and apparatus of government defines the scope of governmental sovereign powers and guarantees individual civil rights and liberties. A constitution is a collection of laws and rules that set up the structure and system which runs the government of a nation and describes the relations between different organisations and arms of government- the Executive, the Judiciary and the Legislature including the Central, Regional and Local Governments. The constitution is the jurisprudential fountain head from which other laws must flow, succinctly and harmoniously without contravention of it. Many, if not all countries have Constitutions. However, it is one thing to have a Constitution and it is another to practice Constitutionalism. Constitutionalism as a concept is of the idea that government can, and should, be legally limited in its powers, and that its authority depends on observance of these limitations. Constitutionalism presupposes that (i) A belief in the Constitution (ii) Recognition of its importance and relevance to the governed consciousness about it within the population and,(iii) Presence of organized political parties ready to defend the Constitution. Thus any state must have some acknowledged means of constituting and specifying the limits placed upon the three arms of government legislature (making laws), executive (implementing laws) and judiciary (adjudicating disputes under laws). The scope of Constitutionalism recognizes that sovereignty resides in the people of a country and power must be exercised in their interests and ultimately subject to their control.A constitutional scholar, Montesquieu, stated that constant experience shows that every man vested with power is liable to abuse it, and to carry his authority as far as it will go. To prevent this abuse, it is necessary from the very nature of things that one power should be a check on another. Looking at a Ugandan court decision passed in the 1980s in the case of Frederick Edward Ssempebwa versus the Attorney General, Justice Arthur Oder held that any amendments which were made by the government that were contrary with the constitutional order that had been established following the NRM/A assumption of power in 1986 were null and void. The judgment in the case confirmed the need for the legislature to work within the bounds of constitutionalism and declared that retrospective legislation violated the principle of legality. Modern constitution-making is attributed to have begun in the late eighteenth century, between 1780 and 1791, when constitutions were written for the various American states, US, Poland and France. This was followed by a wave that occurred in the European 1848 revolutions these took place in more than fifty countries which adopted new constitutions but were often replaced within a short period by constitutions imposed by the victorious counter revolutionary forces. After the First World War, a third wave emerged. This was with newly created states of Poland and Czechoslovakia writing their constitution. A fourth wave occurred after Second World War among the defeated states of Germany and Italy adopting new constitutions under the strict instruction of the Allied Powers. In World War II the chief HYPERLINK http//www.britannica.com/EBchecked/topic/709099/Allied-Powers Allied Powers were Great Britain, France, then the Soviet Union (after its entry in June 1941), and after the United States (after its entry on Dec. 811, 1941), and lastly joined by China More generally the Allies included all the wartime members of the HYPERLINK http//www.britannica.com/EBchecked/topic/616374/Declaration-of-United-Nations United Nations and the signatories to the Declaration of the United Nations thereto. A fifth wave (the first wave in Africa) was connected with the breakup of the French and British colonial empires which began in India and Pakistan in the 1940s. The next wave is linked to the fall of the dictatorships in southern Europe in the mid-1970s when Portugal, Greece and Spain adopted new democratic constitutions. Finally, after the fall of communism in 1989, former communist in Eastern and Central Europe adopted new constitutions. It is concluded that in many cases, the new constitutions were modeled closely on those of the former colonial powers. Constitution-making in sub-Saharan Africa mostly in ex-British colonies began with a series of meetings and agreements, the Lancaster House talks. However, constitutions that were produced as a result of the Lancaster House events have since been transformed and changed through a series of political acts such as military coups, one-party states, personal rule and other forms of authoritarianism and dictatorship. It has been found that Constitutions occur in waves because most are written in the wake of a crisis or exceptional circumstance of some sort. Such that Russell, in his book Constitutional odyssey explains that, no liberal democratic state has accomplished comprehensive constitutional change outside the context of some cataclysmic situation such as revolution, world war, the withdrawal of empire, civil war or the threat of imminent break up. However, my focus of discussion will be on constitution-making through constitution amendments. 2.3 Concept of Constitutional Amendment An amendment is defined as the formal revision or addition proposed or made to a statute or Constitution. Constitutions change with time and this change can occur outside of constitutional law, in the social sphere for instance, or they may be modified according to a procedure stipulated within them. This could be known as the constitutional amendment procedure. Constitutional amendment refers to formal constitutional amendment procedures and not to any constitutional changes. Amending the Constitution is an event of high moment in the life of a constitutional state. A flexible constitution is one with a few, or no special amending procedures while a rigid one is one whose terms cannot be altered by ordinary forms of legislation and only by special amending procedures. The rationale for amendment of constitutions as owing to the need for it to be sufficiently flexible to allow future generations respond to various political, economic and social changes, as well as other changes that may arise in a societys system of values. An amendment procedure is also a means to correct imperfections in the existing instrument. It will further assist in fulfilling the peoples right to alter their form of government, whilst preserving the government legitimacy. Constitutions are made by mortal men, not gods. The amendment process enables the correction of flaws or shortcomings that are revealed by time, practice, and experience, thus reflecting the fallibility of human nature. The methods of states of constitutional amendments are regulated and embarked upon either by formal Constitutional amendment rules or informal Constitutional rules. Formal Constitutional amendment rules are largely corrective. Constitutional designers therefore entrench formal amendment rules that can be used to peacefully correct the Constitutions design. The task of designing formal amendment rules that can distinguish a Constitution distinction from ordinary law may be easier said than done, because it requires presumption of the exact right level of amendment hardship. The more frequently formal amendment can be undertaken, the more the Constitution may be seen as an ordinary law. Scholars look at the purpose of formal Constitutional amendment rules and have described these rules as a tool that can be used for regulating political action and governing constitutional change. They design the amendment process, to pre pledge future political actors, check political branches increase public awareness, and raise democracy. Formal constitutional amendment rules have been considered as the gatekeepers to the constitutional text. They detail the procedures for changing the written constitution, specify what is subject to or immune from formal amendment, promote deliberation about constitutional meaning, distinguish the constitutional text from ordinary law, and may also be designed to express constitutional values. Formal amendment rules are especially useful for channeling popular will into institutional dialogue and checking informal constitutional amendments. By their nature, formal amendment rules reflect both faith and distrust in political actors they simultaneously authorize political actors to improve the constitution while limiting how and when political actors may do so. Given the many essential functions formal amendment rules serve, we would expect constitutions to entrench them, and indeed most of them do. Informal amendment can be defined as the alteration of constitutional meaning in the absence of textual change. Scholars have observed that informal amendment occurs arguably pursuant to extralegal procedures. To call informal amendment extralegal is not to make a claim about its legitimacy. The description of informal amendments methods as extra legal and formal amendment as legal is thus only to high point that informal amendment methods are not stipulated down in a Constitutional text, in contrast to formal amendment rules, which are entrenched within it. When it comes to amendments there is always a question of who has the authority to make amendments. Some scholars have termed this as the theory of constituent power, and the French Constitutional court has gone ahead to bestow onto this entity that holds that sovereign power, the quality of being sovereign. There seems to be a school of thought that the people bestowed upon this constituent power (or even derived), also have the power to amend. However, be that as it may the amending power has to submit to the substance of the Constitution. Many liberal democracies have entrenched constitutional provisions that are meant to facilitate constitutional amendment. However there is a classification of constitutional amendment accounting for both formal and informal methods of constitutional change. There are three models of constitutional amendment Textual, Political and Substantive. The textual model adheres is so complacent to the content of the text of the Constitution amendment procedures stipulated there in arguing that the constitutional text embodies the relevant and acceptable requirements of amending it. The political model believes that the interactions of political actors may themselves give rise to constitutional amendments even if those amendments do not abide by the constitutionally enshrined procedures for amending the Constitution. The substantive model rejects both the former models and it elevates constitutional substance over political process, thus contemplating the possibility of invalidating constitutional amendments for departing from the spirit of the constitutional text- even if they satisfy the requirements of constitutional amendment. Australia, Canada, and Switzerland are classified as examples of the textual model, which holds that the constitutional text enshrines the necessary and sufficient conditions for amending the constitution. The political model, represented by the United States, recognizes that amendments may spring from expressions of popular will that manifest themselves in dialogic exchanges among the political branches and the citizenry and that amendments therefore do not abide by the constitutionally enshrined procedures for amending the constitution. The substantive model, in contrast, chooses instead to elevate constitutional substance over political process, in so doing contemplating the possibility of invalidating constitutional amendments for departing from the spirit of the constitutional text even if those amendments satisfy the textual requirements for constitutional entrenchment. Germany, India, and South Africa are referred to as substantivist regimes. These categories are neither exhaustive nor mutually exclusive, by which this means not only can constitutional states exhibit practices indicative of a fourth or nth constitutional amendment model but also that one constitutional state may exhibit amendment practices aligned with more than one model. Comparative constitutional designs demonstrate that there is no single unified method or process of amending a Constitution. Some are flexible in that the amendment process is relatively easy, such as ordinary legislative majorities while some are rigid in that they require high barriers such as super majorities, referendums, and so on. In the French jurisprudence, there seems to be no limits to the amending power save for the procedural requirements. The only substantive limit seemed to be the protection of the Republican State. 2.4 Unconstitutional Constitutional Amendments Constitutional text such as that which regulates amendments is always prone to be used to undermine democracy.Abusive constitutionalism involves the use of the mechanisms of constitutional change constitutional amendment and constitutional replacement to undermine democracy. While traditional methods of democratic overthrow such as the military coup have been on the decline for decades, the use of constitutional tools to create authoritarian and semi-authoritarian regimes is increasingly prevalent. There is always a trend by powerful incumbent presidents to engineer constitutional change so as to make it very difficult to challenge or dislodge them. Obote used the Military force, and ordered Members of Parliament (MPs) to pass the 1966 Constitution without debate. Though understood to be merely an interim constitution, it made sweeping changes that removed all federal provisions in favor of a centralized government. Buganda, the three federal states, and the non-federal districts lost their autonomy Buganda lost its right to elect its MPs indirectly and the Kabaka lost his privileged status. At the national level, the prime minister became an executive president, in place of the preceding ceremonial president (Kabaka), who had been elected to this position under the 1962 constitution.The Kabaka had protested this takeover to the UN. Clearly, here the military was used and involved in undermining the constitutional order then and Obotes actions shed light into the vast power that the presidency wielded as Prof. Kabwegyere says in his book The Politics of State formation and Destruction in Uganda., that the head of state could abrogate the Constitution and replace it with one of his own choice was the severest blow at the working of the state. It showed that the constitution was not a sacred and respected document and that the power of the president was in a sense limitless. The above occurrences gave way to the constitutional crisis of 1966 in Ugandas constitutional history, in which the then President Dr. Milton Obote took on full executive powers and suspended the 1962 constitution in direct contravention of the Constitution as the supreme law of the land. In order to address the 1966 Buganda crisis, Prime Minister Apollo Milton Obote, on April 15, 1966, prompted the formal adoption of a pigeon hole law which greatly reduced the powers of the president and bestowed executive powers on the Prime Minister. Parliamentarians found a new draft constitution in their pigeonholes and Obote, who came surrounded by troops to parliament, forced the MPs to adopt what came to be known as the Pigeon Hole Constitution. it is hereby resolved that the Constitution that came into being on the 9th day of October 1962 be abolished and it is hereby abolished accordingly and the Constitution now before us to be adopted and it is hereby adopted this day, 15th April 1966. The laws of most countries seem to be silent on the issue of constitutional replacement, and this is proving to be one of the gaps in modern constitutional theory. However for countries like the USA, extra constitutional changes are permitted. In other words, amendments whose entrenchment need not necessarily conform to the procedures commanded by the constitutional text. There has thus arisen a need to create safeguards in the course of designing constitutions, to have provisions which make it more difficult to change sensitive structural provisions that can be tampered with by this kind of abusive constitutionalism. The alternative could be to empower courts to strike down proposed amendments that violate the core principles of the constitutional order. This has been termed as the unconstitutional-constitutional amendments doctrine. This trend of abusive constitutionalism has a tendency of destroying the intended checks and balances within government and thus constructs a regime which looks fairly democratic, but in reality not actually being so. An example is given of the Colombias amendment which allowed the president to run for a second term in office. Some citizens challenged the law citing that this wasnt an amendment but a substitution of the Constitution. Court at first allowed the amendment citing that two terms were internationally acceptable, but when the court was confronted with the same issue of a further amendment to remove term limits, court ruled it unconstitutional. This was an example of the courts checking on abusive constitutionalism. By contrast, In order to neutralize this opposition, President Chavez of Venezuela argued that the existing constitution should and could be replaced. The existing Venezuelan constitution provided only for amendment by Congress like most texts it said nothing about its own replacement. However the president argued that the people retained an inherent constitutional power to replace the constitutional text and he proposed a referendum. The Supreme Court agreed with the proposal, noting that the public retained an authentic constituent power that was prior and above to the set up judicial regime, and thus had the power to replace their existing constitutional text. This brings into question the danger of powerful individuals using constitutional amendments and replacements to create constitutional orders in which they face few constraints onto their power and in which they would be difficult to dislodge. In Hungary, the Fidesz party won the Parliamentary elections of 2010 with 53 (Fifty Three) percent of the vote. Although Fidesz had not campaigned on a platform of constitutional transformation, it began moving towards fundamental constitutional reform after winning the 2010 election. This was started off with the enacting a series of constitutional amendments ten in the closing months of 2010 that effect of this was the weakening of institutions attending to the examining of parliamentary majorities, specifically the Constitutional Court. The Court was asked to strike down this amendment on the ground that it was substantively unconstitutional because it was severely at variance with the existing constitutional order, but a majority of the Court declined to adopt that doctrine and held that it could only review constitutional amendments for procedural problems. Fidesz then went forward with a plan for constitutional replacement using its two-thirds majority in Parliament it began writing an entirely new text. The process was widely criticized for not being inclusive the party used a parliamentary device to evade most deliberation on the bill, and almost no input was received from opposition political forces. As in the Venezuelan case, the new constitution both undermines horizontal checks on the majority and may help it to perpetuate itself in power indefinitely. A number of countries have developed this so called unconstitutional constitutional amendment doctrine, which principally holds that a constitutional amendment can in itself be substantively unconstitutional under certain circumstances. There is also evidence that courts have tended to expand this doctrine over time. This doctrine however seems to be silent on the issue of constitutional replacement, and this is proving to be one of the gaps in modern constitutional theory. So we need to come up with responses (either locally or regionally) that can effectively curb this practice. Other countries like Canada only authorize constitutional constitutional change, in other words, amendments that respect the textual structures of the Constitution. For others like the USA, extra constitutional changes are permitted. In other words, amendments whose entrenchment need not necessarily conform to the procedures commanded by the constitutional text. Other countries like German, South Africa and India belong to a different theory altogether. The theory they subscribe to is that their legal systems base on the presumption that there is the possibility of amendments that fail to respect the spirit of the Constitution. Some tools which have recently been developed to act as safeguards against this have for instance been on ways of controlling constitutional amendment and change. One of the ways proposed has been in raising the procedural requirements of making amendments. However this may not adequately protect democracy against abusive constitutional practices. 2.5 Judicial Review over Constitutional Changes Courts have looked into constitutional changes in terms of modifications, alterations, amendments and also replacements. A prolonged political crisis in Pakistan came to a head in 1958 as thegeneral election, scheduled for February 1959, threatened thenon-representative political elite with a loss of power. To forestallthis eventuality, on October 7, 1958, President Iskandar Mirza officially announced the abrogation of the Constitution, pronounced martial law, closed down the Nationaland Provincial Assemblies, and appointed theCommander-in-Chief of the army as the Chief Martial Law Administrator. The President went ahead to issue the Laws (Continuance in Force) Order, in which all laws were to stay in force and the country was to be ruled This new Order was to be established as closely as may be in conformity with the late Constitution subject to the unfetteredlegislative capacity of the martial law regime. While the declaredobjective of the coup was to invent a Constitution more suitable to thegenius of the Muslim people and return to democracy it was however to be of a typethat people can understand and work, the rFeal motive was to forestall initiation of representative democratic governance. The Supreme Court of Pakistangot the opportunity to examine the validity of the coup dtat in State v.Dosso. The Chief Justice, author of the main opinion, considered itrelevant to assess the present constitutional position in regard ofthe juristic principles which determine the credibility or otherwise oflaw-creating organs in modern nations. The Court turned to HansKelsens theory of revolutionary legality, which it termed as one of the essentialdoctrines of legal positivism, upon which the whole science of modernjurisprudence is based, and took up the position that the efficacy of a coup dtat is the foundation of its validity. The Court found that thecoup dtat, having been successful , . . . confidently meets the standard of efficacy, and has developed into an essential law creating fact. This put in place the position that the Laws(Continuance in Force) Order, In as much as it was for transition or how imperfect it may have been, it set up a new legal order and it would be in conformity with that Order that the authenticity of the laws and the legitimacy of judicial decisions were to be determined. In the aftermath of a successful coup, the nationwide legal regime mustfor its authenticity depend upon the new law-establishing organ, and even Courts of law are deprived of their existing jurisdictions, and can perform only to the extent and in a way determined by the new constitution. The above Dosso court decision is a benchmark in common law jurisprudence in light of the efficacy, legitimacy, and legislative ability of extra-constitutionalregimes. Every Constitution has its own troubles, and every court has its own authority but, an examination of comparative law regarding the Constitutionality of amendment raises four key issues first, one must differentiate right the question if the court has powers to perform judicial review of the constitutionality of an amendment to the Constitution, second concerns the standards according to which it will be determined whether or not an amendment to the Constitution is Constitutional. Comparative law indicates that a proper case for review in this context is that the amendment to the Constitution is unconstitutional because it violates express eternity clauses in the Constitution. The third is that an ideal standard for verifying the constitutionality of a Constitution amendment is to examine the conditions in a Constitution concerning Constitutional amendments. Undeniably, an amendment to the Constitution that has been promulgated in conformity with the conditions in the provision dealing with Constitutional amendment is the only one that can have effect. It is thus natural that the court that has the authority to perform judicial review will examine whether these requirements that have been fulfilled. The final issue that often arises in situations involving unconstitutional constitutional amendments to the Constitution concerns the status and role of the courts in a given society. But then is it proper for judges who are not directly elected by the public to annul the decisions of its elected representatives regarding the amendment of the Constitution In any given system, the Constitution (expressly or impliedly), recognizes judicial review of statutes that violate its provisions. In the same manner in which a Constitution may authorize the court to review the constitutionality of an amendment, there are also instances when it can revoke such authority from courts. Judicial review has emerged as the most satisfactory means of guaranteeing constitutional substance against undesirable alterations. When it comes to judicial review over amendments, questions of whether the courts have jurisdiction usually abound. Jurisdiction is an important point of the system of judicial review. By declaring that a certain matter is justiciable, there are certain arguments to the effect that courts would have gone into the political territory. Conversely, even by denying itself jurisdiction, one can argue that the court would have involved itself in a political matter. There has been putting place of some guidelines for the future use of amending power in France by the Constitutional court whereas it does not directly examine the amending process. This therefore implies that the court is involved in the amending process, even when it does not operate as a judicial sensor. Nonetheless a claim can be made that a said amendment is unconstitutional if such amendment is inserted to revoke judicial review. When it comes to the issue of judicial review over amendments, the question is usually whether the courts have the authority to do so and to which standards they should go to. It should be noted that different countries treat this issue differently. For instance the constitution of Turkey has specific clauses that are unamendable. Case in point was when an amendment one was declared unconstitutional by the Turkish Constitutional court, because it was determined to be a contrary from the secular nature of the State, which is a long established provision. In continuation the Court in June 2008 went ahead to render invalid Parliaments amendments to the Constitution concerning the basis of equality and the right to education. It was in the case of Marbury V Madison, where one of the arguments for judicial review was developed in regard to the fact that the Constitution is the supreme law and superior to any ordinary legislation. Central to the development of the above argument on judicial review of amendments is that the basis of constitutional supremacy mandates courts to make certain that the law making body carries out all of its powers in accordance with the Constitution. The Constitution of the Republic of Uganda provides the legislature with the powers to amend the Constitution and in addition sets out the guidelines to be followed for its amendment in order to make additions, variations, alterations or repeal any provision It provides for specific clauses which can only be amended by two thirds majority of all members of Parliament and a referendum.They include provisions on its amendment provisions on the bill of rights provisions on the representation of the people and so on. These provisions are not flexible and do not readily give room for amendment. The Supreme Court of Uganda handled an examination of the amendment of the Constitution in the case of Paul Kawanga Ssemwogerere Ors VAttorney General The petitioners had gone to court arguing that the Referendum other Provisions Act of 1999 had been passed by Parliament without sufficient quorum and thus unconstitutional. The court observed that innovation of article 257 (now Art. 258) was contrary with article 88 of the Constitution which provides for quorum when voting in Parliament. Therefore the above amendment was thus declared unconstitutional basing on this procedural flaw. 2.6 Conclusion From the foregoing, we can note that constitutional amendments seem to vary from one jurisdiction to another in terms of procedural and substantive requirements. Some of these are dictated by country context and the responses from the courts have equally not been unanimous while carrying out their oversight functions over these amendments. Uganda seems to have a hybrid of some flexibility and rigidity in terms of amendments and this seems to augur well for constitutional law jurisprudence. CHAPTER THREE THE BASIC STRUCTURE DOCTRINE ORIGIN AND DEVELOPMENT (1952 2000) 3.1 Introduction This chapter highlights the process of constitution making in consideration of the ideals and dreams of the people of a country and how they impact on the text that makes up the provision of a Constitution. Further the principles of the Basic Structure Doctrine are looked at as developed by various scholars on the unamendable provisions in Constitutions, origins and development of the Basic structure doctrine inclusive of as a judge made doctrine. 3.2 Origin of the Basic Structure Doctrine Constitutional history is a good indicator of the nature, character and content of the general laws which have erupted underneath and those laws can only be appreciated in the context history of different jurisdictions. It is relevant to note that Constitutions take into consideration the constitutional history of a nation and this can be seen in the Constitution of the Republic of Uganda 1995 that goes ahead to state in its preamble that, We the people of Uganda recalling our history which has been characterised by political instability do hereby enact this constitution. And such during constitution making such factors are considered and catered for. Further the Constitution includes provisions within its text that dissuades its makers from acting on sudden, unconsidered impulses to go ahead and amend it in their favour. Constitutions must serve a protective role of minorities from domination of majorities through establishing the Bill of rights as a tool for shielding and protection of the rights of all people. And thirdly be mindful of reason so as, not to sacrifice what they know to be correct in itself. The constitutional texts of India, Germany and South Africa to mention few and other countries do not expressly authorize their domestic courts to strike down constitutional amendments. But this has not prohibited the judiciary in these countries to take bold steps to assert itself within the constitutional order. Courts in these countries have not hesitated to go ahead to be mindful of the spirit of the makers of the constitution as distinct from the text of the Constitution, as well as a superior law that trounces other laws, including written provisions. This is an elevation of specific substance/content of a constitution above procedural formalities for amendment. When an amendment review has to do with how it was made this is what is referred to as procedural unconstitutionality but substantive unconstitutionality looks at the text as the subject matter of the constitution amendment. On the theory of substantive unconstitutionality, an amendment may be invalidated where the content of the amendment is inconsistent with non-procedural constitutional values. The basis of these values may be sought from the text of the Constitution, as may be entrenched in the basic though unwritten rules of constitutionalism, or they may choose to look into the difference between amendment and revision for guidance. Historically, the legislative source of the Basic structure doctrine can be found from the development of the Basic Law of Federal Republic of Germany, 1949. When the Basic Law of Germany was being enacted, Its written substance contained Article 79, which expressly prohibits the legislature from amending the division of the Federation into Laender the engagement in principle of the Laender in legislation and, the fundamental principles spelt down in Articles 1 and 20, of the Basic Law of Germany. The question of the constitutionality of amendments to a constitution that is unconstitutional was discussed in the German legal literature during the Weimar Republic. The approach of Carl Schmitt, who noted that an amendment to the Constitution assumes the continued existence of the Constitution, is well known stating The boundaries of the authority for constitutional amendments result from the properly understood concept of constitutional change. The authority to amend the constitution, granted by constitutional legislation, means that other constitutional provisions can substitute for individual or multiple ones. They may do so, however, only under the presupposition that the identity and continuity of the constitution as an entirety is preserved. This means the authority for constitutional amendment contains only the grant of authority to undertake changes, additions, extensions, deletions, e.t.c, in constitutional provisions that preserve the constitution itself. It is not the authority to establish a new constitution, nor is it the authority to change the particular basis of this jurisdiction for constitutional revisions. The authority to amend the Constitution is not the authority to establish a new constitution. Without judicial review of the constitutionality of laws during the Weimar period, judicial review of the constitutionality of amendments to the Constitution was also non-existent. At the end of the Second World War, and before the Constitutional Court began to function, the Constitutional Courts in a number of states (Lander) and the Federal Constitutional Court recognised the unconstitutionality of constitutional provisions. They were influenced in this matter by trends in natural law that prevailed in Germany at the time. The judgement of the Constitutional Court of the State of Bavaria, which is well known in this context, states, The nullity of a provision in the Constitution should not be negated just because the provision itself is a part of the Constitution. There are constitutional rules which are so fundamental, and are a manifestation of supraconstitutional law, to the extent that they bind the drafter of the Constitution himself other constitutional provisions, which are not of such high status, and conflict with these rules, can be annulled. In this case, a provision of the Constitution of Bavaria was examined (art. 184), according to which the provisions of the constitution could not derogate from the effect of legislation from the Nazi period. The Constitutional Court of Bavaria annulled that provision, ruling that it was unconstitutional. The constitution of Germanys Constitution contains provisions with an eternity effect and as such these are considered as being unamendable. Key among such provisions relates to the creation of states from federations the rules established in article 1 of the Constitution dealing with human dignity and, article 20 of the Constitution, which provides that the Federal republic is a federal, democratic and socialist nation. In all the cases that have been presented before the Germany Constitutional court that it has gone head to review, it has always come to the conclusion that the constitutional amendments before it are not contrary to the eternity aspects of the Constitution. Courts have on a number of occasions proposed these fundamental aspects among others in a constitution such as democracy, judicial review, secularism, rule of law, federalism and separation of powers to be determined as the basic features of the Constitution. Initially in order to ascertain and determine the basic features of the Constitution is to examine the important judicial opinions in several cases such as Indira Gandhi v. Raj Narain, as well as the early speculations in Kesavananda, in order to identify the main arguments and concerns about the basic features of the Constitution. 3.3 State of India The discussion of the development of the principle of the basic structure doctrine in the nation of India is an endeavor to explore the power struggle between the legislative and the judicial arms of the state. According to the Indian Constitution, Parliament and the state legislatures have the power to make laws within their respective jurisdictions. This power is not absolute in nature. The Constitution vests in the judiciary, the power to adjudicate upon the validity of all laws. The period of 1970s and 1980s in India was rendered turbulent by the power struggle between the legislative and the judicial arms of the state. The Constitution of India under Article 368 gives the impression that Parliaments amending powers are absolute and encompass all parts of the document. In 1952 (Sankari Prasad Sigh Deo V Union of India ) and in 1995 (Sajjan Singh V Rajashan), property owners challenged the Constitutional amendments which placed land reforms in the Ninth Schedule before the Supreme Court, saying that they violated Article 13 (2) of the Constitution. They argued that Parliament and the state legislatures are clearly prohibited from making laws that may take away or abridge the fundamental rights guaranteed to the citizen and that any amendment to the Constitution had the status of a law as understood under Article 13(2). The Supreme Court rejected both arguments and upheld the power of Parliament to amend any part of the Constitution including that which affects the fundamental rights of citizen. In 1964 in the case of Sajjan Singh v State of Rajasthan, the basic structure doctrine was further developed wherein Justice J.R. Mudholkar in his dissent judgment, wrote that it is also an aspect for review if making a change in a basic feature of the Constitution can be considered merely as an amendment or would it be, in effect, rewriting a part of the constitution and if the latter, would it be within the ambit of Article 368 In 1967 an eleven judge bench of the Supreme Court while delivering its 65 majority judgement in the Golak Nath V State of Punjab Chief Justice Subba Rao case raised the peculiar position that Article 368 had created when it put down the amending procedure but then had not vested the Parliament with the power to amend the Constitution. Court found that basic rights entrenched in the constitution are given an extraordinary position and are beyond the scope of Parliament. It was further determined that any amendment that takes away or limits a basic right as given by the constitution is considered as contrary to the constitution. The amending power (constituent power) of Parliament arose from other provisions contained in the Constitution (Articles 245,246,248) which gave it power to make laws (plenary legislative power) thus the amending and legislating powers of Parliament were essentially the same. Therefore any amendment to the Constitution must be deemed law. The majority judgement invoked the concept of implied limitations on the Parliaments power to amend the Constitution. This view held that the Constitution gives a place of permanence to the fundamental freedoms of the citizen.In giving the Constitution to themselves, the people had reserved the fundamental rights for themselves. Article 13, according to the majority view, expressed the limitation on the powers of Parliament. Parliament could not modify, restrict or impair fundamental freedoms due to this very scheme of the Constitution and the nature of the freedoms granted under it. The judges stated that the fundamental rights were so sacrosanct and transcendental in importance that they could not be restricted even if such a move were to receive unanimous approval of both houses of parliament. They observed that a Constituent Assembly might be summoned by Parliament for the purposes of amending the fundamental rights if necessary. In this perspective, the apex court found that some features of the Constitution are fundamental to its existence and in order to change them extraordinary procedures are required. The notion basic structure was initially raised for the first time by M. K. Nambiar and other counsels during the presentation of the petitioners case in the Golak Nath case, however it was until in 1973 that this notion made it in the text of the apex courts decision. Basic Structure doctrine also refers to the principle of non amendability of the fundamental features of the Constitution which came to light in the benchmark case of Kesavananda and has been expounded on by Hedge and Mukherjee, JJ… as follows Our Constitution is not a mere political document. It is basically a social document. It is based on a social philosophy and every social philosophy like every religion has two main features, namely, basic and circumstantial. The former remains constant but the latter is subject to change. The core of a religion always remains constant but the practices affiliated with it may change. Likewise, a Constitution like ours contains certain features which are so essential that they cannot be changed or destroyed. Through a spate of amendments made between 1971 and June 1972 the Parliament of India sought to regain lost ground. It restored for itself the absolute powers to amend any part of the Constitution including part III dealing with fundamental rights. Even the President was made duty bound to assent to any amendment bill passed by both houses of Parliament. Undoubtedly these amendments were raised for questioning before a thirteen judges full bench of the Supreme Court. In Holiness Kesavananda Bharati Sripadagalavaru V State of Kerala and Another 1973 (4) SCC 225ff case the whole bench upheld the position that the Parliament had the authority to amend any or all the text substance of the Constitution. This very court in its decision went ahead to note that the court had in Golak Nath case reached a wrong decision and stated out rightly that an amendment to the Constitution was not the same as a law as had been understood therein. In different words constituent power is more important as compared to ordinary legislative power. The Court by majority over ruled GolakNath V State of Punjab case, which had denied Parliament the power to amend fundamental rights of the citizens. The Supreme Court declared that Article 368 did not enable parliament to alter the basic structure or framework of the Constitution and parliament could not use its amending powers under that Article to damage, emasculate, destroy, abrogate, change or alter the basic structure of the Constitution. This decision was a turning point in Constitutional history. The Supreme Court decision in the historic Indian case of Kesavananda Bharati versus State of Kerala, did for the first time bring to light the BASIC SRUCTURE concept when it reviewed the aspect of constitutional amendment. Court found that amendments that are contrary to the fundamental structure of the constitution are unconstitutional, regardless of the fact that the formal requirements for amendment had been satisfied. This decision was affirmed in the words of Justice Chandrachud as stated as follows, amend as you may even the solemn document which the founding fathers have entrusted to your care, for you know best the needs of your generation. However, the Constitution is a precious heritage thus, you cannot ruin its identity. The court decided that any amendment of the Constitution should be within the ambits of the core of the Constitution Indian Constitution is initially a social Document and is founded upon the socio economic values of the freedom struggle. This is because it is during the time of the freedom struggle that a number of pledges were made for giving rise to a social revolution in the community and these principles cannot be forfeited for the Indian society. These very ideas and values contribute to the make up of the organic entity and vitality to the Constitution. The Parliament which is a creation of the Constitution cannot rob the Constitution of its vitality. Basic Features of the Constitution according to the Kesavanada verdict each judge laid out separately, what he thought were the basic or essential features of the Constitution. Sikri, C.J. explained that the concept of basic structure included Supremacy of the Constitution Republican and democratic form of government Secular character of the Constitution Separation of powers between the legislature, executive and the judiciary Federal character of the Constitution.Shelat, J. and Grover, J. added three more basic features to this list The mandate to build a welfare state contained in the Directive Principles of State Policy Unity and integrity of the nation and, Soverignity of the country. Unegde, J. and Mukherjea, J. identified a separate and shorter list of basic features Sovereignty of India Democratic character of the polity Unity of the country Essential features of the individual freedoms secured to the citizens and, Mandate to build a welfare state. Jaganmohan Reddy, J. stated that elements of the basic features were to be found in the Preamble of the Constitution and the provisions into which they translated such as Sovereign democratic republic Justice-social, economic and political Liberty of thought, expression, belief, faith and worship and, Equality of status and the opportunity. This led to the development of the basic structure doctrine in constitutional amendments. However in a minority view delivered by Justice A. N. Ray (whose appointment to the position of Chief Justice over and above the heads of three senior judges, soon after the pronunciation of the Kesavananda verdict, was widely considered to be politically motivated), Justice M.H. Beg, Justice K.K Mathew and Justice S.N. Dwivedi also agreed that Golaknath had been decided wrongly. The upheld the validity of all three amendments challenged before the court. Ray J held that all parts of the Constitution were essential and no distinction could be made between its essential and non-essential parts. All of them agreed that Parliament could make fundamental changes in the Constitution by exercising its power under Article 368. The basic structure doctrine (or the unassailable provisions) can range from issues like the form and system of government (should it be republican or monarchy) the political structure and, the states fundamental ideology or identity or the basic rights. The doctrine tries to identify the philosophy upon which the Constitution is based. Sudhir Krishna Swamy states that the examination of the basic structure is an independent and well defined kind of constitutional judicial review which is used inquire into to all forms of state action to make sure that such action does not damage or ruin the basic features of the constitution. These basic features are established through a common law technique and general constitutional rules with the assistance of several provisions of the Constitution. Further Krishna Swamy argues that the basic structure doctrine like other kinds of Constitution judicial review systems are founded on a constitutional interpretation that is logical and justified. The validity of basic structure review can be looked at in three perspectives legal legitimacy is determined by justifying structuralist interpretation as a logical and well-founded model of constitutional interpretation sociological legitimacy is to the large extent, based on the success of the legal and moral legitimacy arguments. Where moral legitimacy relies on a rejection of majoritarian versions of democracy and the adoption of the dualist model of purposeful decision making in a Constitutional democracy. In 1975, the Supreme Court was again faced with a matter concerning the basic structure of the Constitution. In this case the Parliament enacted the thirty ninth amendment to the Constitution. This amendment removed the powers of the Supreme Court to adjudicate petitions concerning elections of the President, Vice President, Prime Minister, Minister and Speaker of LokSabha. But rather a body was put in place by Parliament would be entrusted with the authority to resolve such disputed elections outcome. In the Indira Gandhi Election case the petitioners argued that the amendment was contrary the basic structure of the Constitution because it had an impact on the principle of free and fair elections and the power of judicial review. In addition to this Parliament did not have the ability to use its constituent power for authenticating an election that had been declared void by the High Court. The decision was that four out of the five judges struck down the part which was intended to diminish the authority of the judiciary to adjudicate in the recent election dispute and thereafter upheld the amendment These judges reluctantly recognized parliaments authority to enact laws that have a retrospective effect. Despite the disagreement between the judges on what constituted the basic structure of the Constitution, the idea that the Constitution had a core content which was sacrosanct was upheld by the majority view. Within three days of the decision on the Election case Ray C. J. Convened a thirteen judge bench to review the Kesavananda verdict. In effect the review bench was to decide whether or not the basic structure doctrine restricted parliaments power to amend the Constitution. Meanwhile Prime Minister Indira Gandhi, in a speech in Parliament, refused to accept the dogma of basic structure. In order for the government to take the attention of the public from this much anticipated review a pronunciation was of a National Emergency situation in June 1975 that engaged the public for awhile. Soon after the declaration of the National Emergence, the Congress party instituted a committee under the chairmanship of Sadar Swaran Singh to study the question of amending the Constitution in the light of past experiences. Based on its recommendation changes were made to the Constitution through the forty second amendment that included Removing all amendments to fundamental rights from the scope of judicial review Removing all limits on Parliaments power to amend the Constitution under Article and, Laying down that amendments to the Constitution made in the past or those likely to be made in the future could not be questioned in any court on any ground. Judges in this case aired out their opinions on what could constitute the basic structure of the Constitution. Justice H.R. Khanna argued that democracy was a basic feature of the constitution and free and fair elections was inclusive, Justice K.K. Thomas held that the power of judicial review is an essential feature of the constitution and finally Justice Y. V. Chandrachud gave four basic features which he considered unamendable sovereign democratic republic status equality of status and opportunity of an individual secularism and freedom of conscience and religion and the Government of laws not Men which is the rule of law. Shortly after two years of almost absolutely restoring the parliaments amending powers, the owners of Minerva Mills petitioned the Supreme Court arguing against the forty second amendment in the Minerva Mills Ltd V Union of India (1980) 3 SCC 625 case. The amendment was being questioned for having given the parliament unlimited power. The endeavor in this amendment was to insulate constitutional amendments against judicial review was contrary to the doctrine of basic structure which was established by the Supreme Court in the Kesavananda and Indira Gandhi Election cases. The majority judgement was outlined by Chief Justice Y. V. Chandrachud. Court in this decision upheld the above contentions and affirmed the courts power of judicial review of Constitutional amendments. Court established that one of the basic features of the constitution is a limited amending power of Parliament. Further in the case of Minerva Mills v Union of India , it was held that Since the Constitution had vested a limited amending power on the Parliament, the Parliament cannot under the exercise of that limited power increase that very power into an absolute power. Indeed, a limited amending power is one of the basic features of our Constitution and therefore, the limitations on that power cannot be destroyed. In other words, Parliament cannot, under Article 368, expound its amending power so as to acquire for itself the right to repeal or abrogate the Constitution or to destroy its basic and essential features. The donee of a limited power cannot by the exercise of that power convert the limited power into an unlimited one. Much as the decision of court in Kesavananda and Minerva Mills represented key moments, Public Interest Litigations development contributed to the increased duty of court in governance. It was during court adjudication of Public Interest Litigation matters that it gained strong momentum and was viewed as a champion of the rule of law in examining and ameliorating government illegality and statutory nonadherence. In another case of Waman Rao V Union of India 1981 2 SCC 362 relating to a similar dispute involving agricultural property the apex court held that all constitutional amendments made after the date of Kesavananda judgement were open to judicial review. The court in the Bommai decision was faced with the challenge involving secularism, federalism and the basic structure doctrine. In 1992, a coalition of Hindu right forces launched a campaign that ultimately resulted in the demolition of the Babri Masjid, a mosque that was alleged to have been built on the site of an ancient Hindu temple, with the acquiescence and support of the BJP government in Uttar Pradesh, which led to heightened communal violence throughout India. In response, exercising the emergency powers of Presidents rule under Article 356, the President dismissed the BJP governments and dissolved legislative assemblies in six states. Further still court in its decision in Bommai case went ahead and affirmed the dismissals of three state governments established in accordance to Article 356 of the Constitution on the basis that the actions of the President were relevant to save the basic structure of the Constitution. Since the state governments were not functioning in accordance with secularism, which the Court ruled to be part of the basic structure of the Constitution, the President acted within his authority. At the same time, the Court also held that both democracy and federalism were basic features of the constitution, and that the Court could review the constitutionality of Presidential proclamations under the emergency powers of Article 356 to ensure that these basic features were not subverted. The Bommai decision was distinguished because it made legitimate and maintained the exercise of government authority instead of rendering void an amendment in accordance to the basic structure doctrine. The Court thus expanded its power to include the review and scrutiny of political decisions relating to state elections and politics. S.P. Sathe regarded the Bommai court decision as the most significant and politically relevant judgement of the Court since Kesavananda Bharati because the Court expanded the doctrine of review under the basic structure doctrine to the exercise of authority by the President in accordance with Article 356 of the Constitution. The assertion of the basic structure in India represented an exemplar of what I refer to as constitutional entrenchment moment. The Courts basic structure decisions in Kesavananada and later cases illustrate how courts may assert limits on governments to prevent them from amending the Constitution in a way that violates certain entrenched constitutional norms and principles.The Indian Courts basic structure decisions solidified the Courts super anti – majoritarian function in imposing limits on the abilities of majorities to do violence to the core principles underlying the Indian Constitution. Critics of the basic structure doctrine in India have suggested that the doctrine is anti-democratic and lacks legitimacy in that it allows judges to inject subjectivity into the process of identifying the basic features of the Constitution Section 46 of the Forty Second Amendment introduced Article 323 which authorised Parliament to establish a system of administrative tribunals with jurisdiction over matters involving service of government employees and disputes involving a broad array of government policies. Following this up in 1985 the Administrative Tribunal Act of 1985 was enacted. The Act was challenged in S.P. Sampath Kumar Versus Union of India, on the grounds that Article 323 (A) violated the basic structure of the Constitution. While ruling that judicial review is part of the basic structure Constitution, the Court in Sampath Kumara actually upheld the Administrative Tribunal Act, since the new administrative courts had that power of judicial review and were no less efficacious than the high courts. However , the Court re interpreted the Act so as to have its validity, ruling that the Acts appointment provisions, which provided for executive control over appointment of the Chairman, Vice Chairman, and members of the Administrative Tribunal would be unconstitutional since judicial independence is a basic essential feature of the Constitution. The Court thus held that its decision would apply prospectively (thus upholding existing appointments under the Act), and that the Act would be saved if the government adopted an appointment process in which the government was required to consult with the Chief Justice and defer heavily to the Chief Justices recommendations. However, in 1997, the Court in L. Chandra Kumar Versus India overruled its decision in S. P. Sampath Kumar. The court in L. Chandra Kumar held that Article 323 (A)92)(d) contravened the basic structure doctrine in that it allowed Parliament to exclude the jurisdiction of the High Courts under Article 226 over the administrative tribunals, and only allowing appeals to the Supreme Court. The Courts decision represented a reassertion of judicial authority over the administrative tribunal system. 3.4 Pakistan The debate as to what constitutes Basic Structure of the Constitution (if there exists any) has always been a topic under discussion among the legal fraternity in Pakistan. There has been litigation on this issue, however, no concrete decision has been laid down in the superior Courts. One such example is the case of 18th Constitutional Amendment, in which the Court had to decide, inter alia, on whether the 18th amendment infringes upon the basic structure of the Constitution or not. This question had never been decided by the Court, and now the case is being put up with the case of 21st Amendment. Beside the major cases, the discussions have been done, debates have been conducted, scholarly articles have been written giving personal opinion whether there exists any basic structure of the Constitution or not. However, it is imperative to note that the judges, scholars and writers are always inclined towards negative, when there comes the debate of existence of basic structure in the Constitution, more than they positively favored it. The superior Courts of Pakistan are always resistant in adopting this doctrine, and as a result they have found a way from deciding this fundamental question. In this regard, it is pertinent to discuss the important cases, where the Supreme Court of Pakistan has vaguely decided the issue of basis structure of Pakistani Constitution, as well as the cases in which Supreme Court has decided upon the question of Courts power to strike down a legislative amendment. Justice Khawaja during NRO cases delve into the distinguishing boundary between constitutional provisions and criterion deciding good or bad for the people which in no way is the domain of a judge. He said, the court, while exercising the judicial function entrusted to it by the Constitution, is constrained by the Constitution and must therefore perform its duty in accordance with the dictates of the Constitution and the laws made there under. If the court veers from this course charted for it and attempts to become the arbiter of what is good or bad for the people, it will inevitably enter the minefield of doctrines such as the law of necessity, with the same disastrous consequences… Decisions as to what is good or bad for the people must be left to the elected representatives of the people, subject only to the limits imposed by the Constitution. Such remarks clarify the doubt about courts eligibility to discuss the efficacy of eighteenth amendment. Deciding the desirability and necessity of constitutional amendment in this regard seems to be out of Supreme Courts domain. The establishment of the Constituent assembly was prior to the Constitution makers outlining the fundamental features that comprised the basic structure of Constitution. They did not establish any steps through which such structural features can be rooted to changing and developing political dynamics. The terms nature and basic provisions of the constitution were firstly coined in the case of Fazlul Quader Chowdhry Vs. Muhammad Abdul Haque where the court when reaching the decision in regard to the scope of Article 224 of the 1962 Constitution, found that the aspect of the franchise, and of the form of the Government are basic features of a Constitution and therefore the Constitution was not envisaged to be changed according to the wishes of any person or persons. In State Vs. Zia-ur-Rehman, the Court held that the judiciary, in exercise of its judicial power, cannot strike down a provision of the Constitution. All it can do, is to interpret the same. Since, the Supreme Court itself is the creature of the Constitution, so it neither can claim, nor has the right to strike down the provision of the Constitution. In the case of Islamic Republic of Pakistan Vs. Abdul Wali Khan, Mr. Justice Hamoodur Rehman, the then Chief Justice, while quoting his own decision in the case of Province of East Pakistan Vs. SirajulHaqPatwarisaid that the court should lean in favor of upholding the constitutionality of a legislation and it is, therefore, incumbent upon courts to be extremely reluctant to strike down laws an unconstitutional. Furthermore, while avoiding getting into the discussion of whether the fundamental rights can be abrogated through a constitutional amendment, said that the issue before this court is to decide that whether the court can strike down any provision for being violative or repugnant. To this question, their answer was negative. In the case of Federation of Pakistan Vs. United Sugar Mills, the Court greatly disagreed with the authority of Supreme Court to set aside a constitutional amendment, on the basis of the decision in the case of Zia ur Rehman, that pronounced itself in Pakistan as follows a constitutional provision cannot be questioned on the basis of being repugnant to what are sometimes described as national inspirations or an abstract concept so long as the provision is passed by the competent Legislature in compliance with the established procedure by the Constitution In Al-Jehad Trust Vs. Federation of Pakistan, the Court, instead of adopting the basic structure doctrine, has pressed in to service the rule of interpretation that if there is a conflict, the provision which contains lesser rights will yield in favor of the provision which contains higher right. In Mahmood Khan Achakzai Vs. Federation of Pakistan, it was highlighted that, Objective Resolution is very significant and is the sheet-anchor of the Constitution for it depicts aspirations of the people of Pakistan as to what they desire and how they want to be ruled. Further it was stated that freedom vested upon the parliament in clause (6) of Article 239 after amendment does not grant authority to amend those provisions of the Constitution by which would be varying of salient features of the Constitution, namely federalism and, Parliamentary form of government fussed with Islamic Provisions. In conclusion the court decided that It is open to the Parliament to make amendment to the Constitution of any provision of the Eighth Amendment as envisaged in accordance with Article 239 as long as basic characteristics of federalism, parliamentary democracy and Islamic provisions as contemplated in the Objective Resolution/ Preamble of the Constitution of 1973 which now stands as substantive part of the Constitution in the shape of 2A are not tampered with. When declining the applicability of the basic structure doctrine court said, It can, therefore, be said that in Pakistan there is a coherent view from the very beginning that a provision of the Constitution cannot be struck down on the basis that it is in breach of any famous feature, characteristic or structure of the Constitution. Therefore the theory of basic structure had absolutely been rejected. But, as discussed hereunder every Constitution has its own characteristic and features which play a significant role in making the laws and interpreting the provisions of the Constitution. Such distinguishable features are found within the realm of the Constitution. It does not mean that I impliedly recognise the theory of the basic structure of the Constitution. It has only been referred to depict that every Constitution has its own characteristics. In Wukula Mahaz Barai Tahafaz Dastoor Vs. Federation of Pakistan the court decided that when an impugned Constitutional amendment is of such a kind, which appears to destroy any of the basic features of the Constitution without which the State could not have been governed as was originally mandated by the makers of the Constitution that cannot be reaffirmed as it destroys the basic feature of the Constitution. But, the court stated that what are the basic relevant important features of the Constitution of Pakistan is yet to be responded to with clarity. The Court cites three basic features of the Constitution, as stated by the counsel for Petitioners in this matter as follows specifically Islamic idea of democracy rule, representative mode of Government, and independence of judiciary. The Court found that the principle has not been recognized by the courts of our country, and thus has not been often systematically applied in Pakistan. 3.5 Brazil The Brazil 1988 Constitution recognizes judicial review of the constitutionality of laws. It comprises of a provision concerning eternal clauses, which provides No resolution is debated relating an amendment proposal which appears to abolish I. the federative nature of the state II. The direct, secret, universal, and periodic vote III. The independence of the Government arms and, IV individual freedoms and guarantees. The Supreme Court looks at itself as empowered to annul an amendment to the Constitution that is contrary to eternal clauses, and it has executed this on various occasions. 3.6 Bangladesh In 1989 the Supreme Court of Bangladesh cited the famous case of Kesavananda Bharati while adopting the Basic Structure Doctrine in its constitutional structure. During the reaching of a decision on the 8thAmendment to the Constitution of Bangladesh, 1972 the Supreme Court of upheld the Article 7 of the Constitution. Two writ petitions were filed challenging the amendment in Article 100 of the Bangladesh Constitution, through the Constitution (Eighth Amendment) Act, 1988, and the notification of Chief Justice on the ground that High Court division of the Supreme Court with judicial power over the republic is a basic structure of the Bangladesh Constitution, and therefore cannot be altered or amended. The writ petitions were dismissed by the Division Bench of the High Court. The appeal was allowed by the Appellate Division, which along with the appeals of Anwar Hussain Chowdhury Vs. Bangladeshwere filed before the Supreme Court of Bangladesh, and is popularly known as Eighth Amendment Case. While striking down the 8th Amendment, B. H. Chowdhury J. listed down 21 features, to be known as basic features of the Bangladesh Constitution, which are unamendable. Moreover, Shahbuddin J. held that the constituent power, to make the constitution lies wholly with the people, and is adopted by the parliament as a derivative power, and this derivative power cannot immune the amendment from challenge. As a result, through the case of Anwar Hussain, the Supreme Court adopted the basic structure doctrine, and it enshrines in the constitutional structure of independent Bangladesh. 3.7 Singapore In TeoSoh Lung v Minister for Home Affairs and ChngSuanTze v Minister for Home Affairs Justice Chua declined the argument that there are constitutional amendments which Parliament has no legal authority to make and to hold otherwise. Justice Chua further stated this would be hijacking Parliaments legislative function violating art 58 of the Constitution. He differed with the decision in Kesavananda on the basis of no similarities between Singaporean and Indian constitutional history. In his own words Justice Chua to emphasize his decision of refusing to the apply the basic features doctrine stated, Taking into consideration the differences in the making of the Indian and Singapore Constitution, it cannot be said that the authority of Singapores Parliament to amend our Constitution is narrowed in the same way as the Indian Parliaments authority to amend its Constitution. Manoj Mate distinguished his conceptualization of the idea of constitutional entrenchment from Bruce Ackermans idea of a constitutional moment. For Ackerman he defines a constitutional moment as a process through which constitutional change is attained outside the formal channels of the amendment process, yet does not cause the problem of revolutionary legitimacy that taints periods of constitutional revolution and change that contravene the norm of legality. Constitutional moments for Ackerman therefore comprise of exceptional periods in which higher lawmaking is guided by transformative political movements that ultimately and permanently alter the Constitutional structure by pushing for constitutional reform that is affirmed by subsequent elections, and ultimately codified in judicial decisions of court. In contrast to Ackermans conception of a constitutional moment, constitutional entrenchment moments differ in that they involve court led processes to either entrench or redefine constitutional frameworks. 3.8 Turkey Notably the Turkish constitution did not contain a direct provision concerning judicial review of constitutional amendments till 1971. Prior to this the Turkish constitutional court chose to understand the silence of the constitution on this issue to mean that it allowed the court to carry out judicial review of the constitutionality of an amendment to the constitution. An amendment was made to the Turkish Constitution in 1971. In the amendment the constitutional court of Turkey was authorized to review whether an amendment satisfies the formal requirements of a constitutional amendment. The first case presented to the constitutional court after this amendment required the court to review the amendment of the constitution (of 1973), which was to the effect that a majority of members of the military courts have to be qualified judges. However the amendment also dispensed with the fulfilling of this condition in time of war. The constitutional court on April 15, 1975, decided that in regard to this amendment, it was not constitutional, because it violated the republican form of the state. The court came to the conclusion that the amendment infringed judicial independence as was enshrined in article 7 of the Constitution which is a component of the principle of the rule of law enshrined in article 2 of the same Constitution that ultimately comprises an integral component of the states character as a republic outlined in article 1 of the Constitution. According to article 9 of the Constitution, article 1 and 2 of the Constitution are unamendable. Still in 1971, the Turkey Constitution was further amended to demand that compensation for expropriation of land should not be above the lands value as declared by the owner to the tax authorities. The constitutional court decided on October 12, 1976 that the amendment was not constitutional, as it infringed upon the nucleus of the property right. A further amendment to the Turkey Constitution in 1971 decided that there must be no appeal against the decisions of the Council of Judges to a judicial instance. In a judgement of January 28, 1977, court established that the amendment was unconstitutional because it derogated from the rule of law as guaranteed in article 2 of the Constitution which comprises a component of the republican nature of the state, which is an unamendable in the Constitution as determined in article 9 of the Constitution. Article 1 of the Constitution of Turkey of 1982 establishes its nature as a state as a Republic, Article 2 spells out its characteristics as a Republic, and Article 3 of the same Constitution shall not be proposed for amendment nor amended. In continued amendment of the 1982 Constitution under Article 148(1) the Constitutional Court was empowered to review the constitutionality of an amendment to the Constitution. This authority to review amendments according to Article 148(2) of the Constitution was limited. The review of constitutional amendments was restricted to examination of whether the needed majorities were attained for the proposal and in the ballot, and whether the prohibition on debates under urgent procedure was adhered to. The new Constitution further declared Turkey as a republic under Article 1 and that the Turkish Republic was a democratic, secular, and socialist state governed by the rule of law as stipulated under Article 2. Article 4 went ahead to protect these features by declaring these unamendable. This therefore created safeguards and as such whenever a new Constitution provision seeking to amend the Constitution was inserted, it had to be reviewed various times by the Constitutional Court with the first attempt being in 1987. In its judgement of June 8, 1987, the Constitutional Court decided that it was not allowed to examine on the unconstitutionality of an amendment, as this is not among the issues that are judicially examinable in accordance to article 148(2) of the Constitution. A second attempt was in 2008 when the court considered a constitutional amendment amending, inter alia, article 42 of the Constitution, which provides for rights and duties concerning education. The amendment inserted a provision to the Constitution, to the effect that No one can be denied of the right to higher education basing on any reason not explicitly written in the law. And as such limitations on the exercise of this right shall be decided by the law. This amendment was informed by female students facing prohibitions against accessing institutions of higher education wearing traditional dress. A change was made to the law to enable them to be allowed to access institutions of higher education wearing tradition dress. The Constitutional Court went ahead and declared that the law was not constitutional. Consequently the above mentioned constitutional amendment was made in 2008. On June 5. 2008, the Constitutional Court declared the amendment to the Constitution as unconstitutional. The rationale for this was the amendments contravention of the secular character of the state as enshrined in article 2 of the Constitution which meant that this was a derogation that differs from Turkeys nature as a republic as enshrined in article 1 of the Constitution. This character is unamendable in the Constitution. 3.9 South Africa The Constitutional court of South Africa was presented with arguments to declare amendments that had been made in the Republic of South Africa Second Amendment Act, No. 44 of 1995 as unconstitutional in the case of Kwa Zulu Natal V President of the Republic of South Africa. These various amendments were made to the Constitution of the Republic of South Africa, Act No. 200 of 1993. Specifically, amendment to section 149(10) that was intended to amend the legislative and executive competence of a province was challenged on the basis that this could not be done without the consent of the relevant provincial legislature because of the proviso to section 62(2) of the Constitution. Court found consequently that the impugned amendment to section 149(10) could not effectively be challenged simply on the basis that it offends Constitutional Principle XVIII (2). It is, for the purposes of this case, unnecessary to decide whether a constitutional amendment which has substantially the effect of destroying or abrogating the very essentials upon which the Constitutional Principles are premised, would be constitutionally permissible merely because the procedures prescribed by section 62 were followed. The impugned amendment to section 149(10) does not fall within such a category. Certainly, the amendment to section 149(10) cannot even be said to diminish the powers and functions of the provinces in respects which make them significantly less or significantly inferior, nor can it be stated that the impugned amendment is by necessary implication excluded by any other Constitutional Principle. In spite of that fact the court dismissed the petition stating that if the procedure is satisfied, the amendment is constitutionally not attackable. But the same court stated that if an amendment is radically and fundamentally restructuring the core principles of the Constitution, although formal procedures have been undertaken, it might not qualify as an amendment at all. Here the court was opening the door to the substantive theory of constitutional amendment. In this article it is proposed that there are some differences textually and contextually between South Africa and India that prohibit the application of the doctrine of basic structure in South African law. Notably from the beginning it is significant to note that it is much simpler to amend the Indian Constitution than our Constitution. The South African Constitution requires a much higher procedural threshold than the Indian Constitution which can be amended by a simple majority. This has made the Indian Constitution more susceptible to being abused by the legislature and this legitimizes the judiciarys genuine concern to shield the fundamental values and structure of the Constitution. Secondly, the text of the South African Constitution allows for the amendment of even the founding provisions in section 1. This section is regarded as a surrogate for the basic structure doctrine as it contains most of the values that would form part of such a doctrine in South Africa. The fact that the constitutional assembly envisioned the amendment of section 1, and the decision was accepted by the constitutional court in Certification of the Amended Text of the Constitution of the Republic of South Africa, 1996 1997 2 SA 97 (CC) (the Second Certification judgment), indicates that it was never the intention that the basic structure of the Constitution be fully entrenched. Thirdly, the South African judiciary does not have as liberal an interpretation of the separation of powers as their Indian counterpart. Whereas the constitutional court in Ex parte Chairperson of the Constitutional Assembly of the Republic of South Africa in re Certification of the Constitution of the Republic of South Africa 1996 4 SA 744 (CC) (the First Certification judgment) made it clear that there is no absolute difference between the various spheres of government, the model of separation of powers that has evolved under the Constitution has always viewed the judiciary acting very mindful of the unique roles and functions entrusted to the other spheres of government. Whereas the Indian courts are quick to intervene in the legislative process and even policy matters, the South African constitutional court has refrained from such an activist role. 3.9 Conclusion From the foregoing, we can note that constitutional amendments seem to vary from one jurisdiction to another in terms of procedural and substantive requirements. Some of these are dictated by country context and the responses from the courts have equally not been unanimous while carrying out their oversight functions over these amendments. CHAPTER FOUR CONTEMPORARY RELEVANCE AND APPLICATION OF THE BASIC STRUCTURE DOCTRINE SELECTED CASES (2000 Present) 4.1 Introduction The doctrine of an unconstitutional constitutional amendment traces its political foundations to France and the United States, its doctrinal origins to Germany, and it has migrated in some mode to several other constitutional democracies, including Argentina, Austria, Bangladesh, Brazil, Colombia, Greece, Hungary, India, Italy, Japan, Nepal, Peru, Portugal, Slovakia, South Africa, South Korea, Switzerland, Taiwan, Tanzania, Thailand, Turkey, 3 and recently to Belize. The basic structure doctrine depicts an important departure from over a centurys worth of jurisprudence on the powers of legislatures of different countries. Constitutional change can also be instigated by judges through decisions that remodel and redefine the contours of constitutional law. Constitutional change cannot and will not always be informed by political change, and judges may on their own initiative act to entrench constitutional norms. Judicial entrenchment may play the role of a successful alternative method to entrenching constitutional norms. The culture, social structure and political organisations of countries vary and, therefore, so will their respective constitutional systems. 4.2 Selected Cases 4.2.1 Pakistan In Syed Zafar Ali Shah Vs. Federation of Pakistan, Court found that the Pakistan Constitution is the supreme law of the land and its fundamental features, that include independence of judiciary federalism and, parliamentary character of government blended with Islamic Principles, cannot be changed even by the Parliament. While deciding upon the coup of Musharraf, the Court held that he could amend the Constitution, but he could not alter the basic structure of the Constitution, which includes the abovementioned features. 4.2.2 Uganda The 1995 Constitution of the Republic of Uganda provides for its amendment and the authority is vested with the Parliament to make changes to it through additions variations and, alterations or repeal in accordance with the rules established by the Constitution. The constitution specifies certain clauses which can only be amended by a two thirds majority of all members of Parliament or a referendum. Amongst these include provisions on its amendment the bill of rights and, the representation of the people. These provisions are rigid and not easily amendable. An amendment to the Constitution of Uganda 1995 was questioned in the Supreme Court decision of Paul Kawanga Ssemwogerere Ors V Attorney General. The petitioners had gone to court arguing that the Referendum other Provisions Act of 1999 had been passed by Parliament without sufficient quorum and thus unconstitutional. The court noted that the establishing of article 257 (now Art. 258) was contrary with article 88 of the Constitution that outlines the necessary quorum during the voting process in Parliament. On the basis of flaunting the procedure laid down in the provision on quorum that is necessary for passing an amendment, the court declared the amendment unconstitutional. In the Miria Matembes case the question that was tackled was the extent to which parliaments powers of amendment can be questioned even at the earliest stage of the process. Courts in Uganda have examined have examined cases concerning the process of amendment as opposed to substance. But the argument has been made that in regard to the 2005 amendment that led to the removal of presidential term limits had the consequence of destroying by causing a minimum of some damage to the fundamental structure of the 1995 Constitution. In 2011 President Museveni proposed what may be looked at as unconstitutional Constitutional Amendments in form of constitutional and legal reform through public order management and censorship of the media overly broad. Consequently parliament did pass and enacted the Public Order Management Act in furtherance of the above proposals of the President. However Professor Joe Oloka Onyango argues that the above proposed amendments by the President are fundamentally unconstitutional. And that they are unconstitutional not simply on account of what have come to be regarded as the basic freedoms- movement, speech, assembly and association but because such restrictions will infect several other parts of the Constitution what does he mean by infection Consequently if the automatic right to bail is scrapped, it will have an impact on many other rights, such as freedom of movement, the right to life, freedom of speech and many others. Such amendment rallies against both the spirit and letter of the Constitution, which necessitates us as a nation and for our legislators too to be mindful of the remembering our history of reigns of terror and dictatorship in order not to have a relapse into it ever again. The National Objectives and Directive principles of State Policy enshrine binding democratic principles on the state. Article 3 of the 1995 Constitution also prevents any unlawful amendment to the Constitution which has the effect of suspending, overthrowing, or abrogating the Constitution. In effect, the imposition of further restrictions on the rights to speak, associate and demonstrate will amount to an unlawful amendment because it will overthrow the very foundation on which the 1995 Constitution was built. While recognising that all rights can be restricted, the extent of the restriction cannot be over broad. The seeking of a of mandatory six month sentence without bail or trial for an individual as a penalty for just choosing to walk to work as a mode of protest against government can a depiction and cause for worry as a reintroduction of detention without trial, consequently violating Article 43(2) (b) of the 1995 Constitution. And the pursuing of economic offences may bring to memory the times of Anti-Smuggling Unit, which rained terror on ordinary Ugandans. But most importantly, the proposed amendments would offend two other cardinal principals in the 1995 Constitution. The first is that of independence of the Judiciary, which gives the Judiciary the power to determine whether the conditions of bail are adequate or not it is not the Executive to do so. The second principle is contained in Article 126(3), which stipulates that all organs and agencies of the State shall accord to the courts such assistance as may be required to ensure the effectiveness of the courts. Introducing the amendments proposed would undermine that assistance. In sum, what the proposed amendments would do is to effectively overturn the Constitution. 4.2.3 Tanzania The court in Tanzania court noted in the case of Christopher Mtikila Versus AG that there as far it had to do with the section on the Bill of Rights it was necessary for curtailing and keeping in check the power of legislature to tamper with it. The Petitioner, Rev. Christopher Mtikila, who was a very determined man filed a petition in the High Court at Dodoma in 1993 to seek among other reliefs, a declaration that the citizens of the country had a right to contest for the posts of president, Member of Parliament and local government councilor without being forced to join any political party. The High Court decided in his favour on this aspect. The government filed an appeal against that finding, but later withdrew the appeal and sent a bill in parliament to legislate in anticipation against that decision of the court. The petitioner then came to courts seeking a declaration that the Constitutional amendment to Articles 39 and 67 of the Constitution of the United Republic of Tanzania as introduced by amendments contained in Act No. 34 of 1994 is unconstitutional. The petitioner expressed before the court various reasons against the constitutional amendments. The reasons included that the amendment was in contravention of the Basic Human Rights as guaranteed in Article 21 (1) of the Constitution, which gave a citizen the right of association Article 20(4) which does not permit the making of laws coercing people to join any society or corporation and, are a violation of International Covenants on Human Rights to which the United Republic is a party. The petitioner submitted that the consequence of all these amendments was that an ordinary person in Tanzania was coerced into membership of a political party so as to be able to engage in government affairs in order to be eligible for election to the posts of president or Member of Parliament. Two counsels for the petitioner Mr. Rweyongeza and Mr. Mpoki, in their arguments before court stated such provision is discriminatory on the basis that it appears to discriminate citizens who have joined political parties as against those who are not members in pursuance of election for political posts. The learned Counsel in his other arguments further submitted citing that considering that court in R. Mtikila versus AG had upheld the fundamental rights contained in the Constitution, the legislation of Act 34 of 1994 therefore null, on the basis of repugnancy. Counsels for the Respondent in this case the state Mr. Mwaimu and Ms Ndunguru the learned Principal State Attorney and learned State Attorney respectively argued that the amendments to the Constitution were enacted within the powers of the legislature and that did not violate any provision of the constitution and that this position had previously been supported in R. Mtikila versus AG (1995). Still in defense for the amendment being justified counsels for the south African state referred to earlier decisions of South Africa versus Makwanyane and S versus Bhulwana for court to look at the opinions there in as persuasive on the rationale that the amendment was good for the purposes of representative democracy and balancing the interests of the public at large. In response to the query of treating people different before the law, the learned state attorneys stated that the amendment was intended for all those who pursue leadership positions for the principle of equality does not demand that each person be treated the same, but just that people in similar positions should be treated the same. Court was further presented with another South Africa decision of President of Republic of South Africa vs Hugo that is referred to in a book Bill of Rights Handbook. The learned Counsel argued that in the alternative that in some instances it is possible to legitimize discrimination as an exception on the basis of meeting the ends of affirmative action. This principle is referred to as equitable discrimination . The learned state attorneys submitted that while it is not disputed that Tanzania was a signatory to the Universal Declaration of Human Rights and ratified the African Charter for Human and Peoples Rights, these instruments have their limitations. They cited the example of Article 29 (2) of the Universal Declaration of Human Rights, which provides to the effect that the exercise of those rights shall be subject to such limitations as may be imposed by law for the purpose of securing and recognition of the rights and freedoms of others. In their rejoinder, Mr. Rweyongeza and Mr. Mpoki, learned Counsel submitted that although the Parliament is given wide powers to amend constitutional provisions those powers are subject to the limits imposed by Article 30 (2) and 31 of the Constitution. Ordinarily there are principles for constitutional interpretation and those that govern the settling of constitutional conflicts. In this case court recognized principles outlined by Samatta C. J in Civil Appeal No. 64 of 2001 Julius Ishengoma Francis Ndyanabovs the Attorney General (Unreported) that was heard in the Court of Appeal of Tanzania at pp. 17-18 and these included The Constitution of the United Republic is a living instrument, having a soul and consciousness of its own. Courts must therefore endeavor to avoid crippling it by construing it technically or in a narrow spirit. It must be construed in tune with the lofty purpose for which its makers framed it and, The provisions dealing with fundamental rights have to be construed in a wide and liberal manner, in order to begrudgingly shield and develop the dimensions of those rights and guaranteeing that our people enjoy their liberties, while our young democracy not only functions, but develops and the will and dominant aspirations of the people prevail. Consequently limitations on fundamental rights must be conservatively interpreted. Therefore Courts have a role to construe the Constitution so as to promote fundamental Objectives and Directives of State policy. Act No. 34 of 1994, amended Articles 21, 39, and 67 of the Constitution by cross referring Article 21 to article 5, 39 and 67. Article 39 (1) which refers to the qualifications of a presidential candidate and those of Article 67 (1), of the Constitution as amended articulate the necessity of being a member of a political party as a qualification for presidential and parliamentary candidates. The petitioner contended that these provisions contravened what was contained in Article 9 (a) and (f), of the Constitution. These conflicting contentions informed the first issue for court to address to being framed as Establish if Articles 39 (1) (c), 39 (2), 67 (b) and 67 (2) (e) are unconstitutional The jurisdiction of the Court to adjudicate on violations of such article was further derived from Article 30 (3) of the Constitution which provided for any person alleging that any provision in this part of this chapter or in any law concerning his right or duty owed to him has been, is being or is likely to be violated by any person anywhere in the United Republic may institute proceedings for redress in the High Court. In arriving at their decision court recognized the suggestion that in spite of the Parliament having powers to make laws, such powers have a boundary. Court referred to an article titled Constitutional Limits of Parliamentary Powers authored by Professor Issa Shivji which was published in special edition of the Tanzania Lawyer of October, 2003. In this article Shivji elaborates on the powers of parliament as follows the power to amend the Constitution is also limited. While it is true that parliament acting in Constituent capacity …can amend any provision of the Constitution, it cannot do so in a manner that would alter the basic structure or essential features of the Constitution. The issue therefore before court is whether the amendments to Articles 21 (1) and Articles 39 and 67 of the Constitution is Constitutional. Court tried to trace above the history of representative democracy. Court showed that soon after independence the two Constitutions 1961 and 1962 had no restriction on the qualifications for elective posts of the president and Members of Parliament. Court noted also that this restriction to party members to be nominated for the said elective posts first appeared in the 1965 Interim Constitution and carried over in the 1977 constitution, when the party was under one party system. But until the enactment of the Bill of Rights in the 1984 Constitutional Amendments, there were no provisions similar to Articles 20 and 21, hence the legitimacy of Articles 39 and 67 which remained restrictive to party membership. We have seen above what the two provisions provide. To court the combined effect of Articles 20 and 21 is to expand the arena of representative democracy. To appreciate it one must compare Article 20 (2) as it appeared immediately after the insertion of the Bill of Rights and reflected in the 1985 version of the Constitution and Article 20 (4) as it appears in the 2005 edition of the Constitution. To court it appeared therefore that, while Articles 20 and 21 of the Constitution are intended to expand the arena of democracy and the right to participate in the government of the state, Articles 39 (1) (c) and 67 (1) (b) of the Constitution as amended seem to erode and restrict the right to contest for the elective posts to members of political parties only. As court they think that those provisions cannot be reconciled. In courts considered view the right to join or not to join political parties is as fundamental as the right to religious belief which cannot be made a basis for contesting for an elective political post. And so court proceeded to hold that the provisions of Articles 21 (1), 39 (1) (c) and 67 (1) (b) are violative of Articles 20 and 21 of the Constitution. But the contraventions alone are not sufficient to declare the Articles, unconstitutional. When the court was considering the principle applicable in a case where a petitioner alleges that their fundamental right is being limited by another provision of the Constitution, court from the review of the authorities submitted by the learned counsel looked at determining if the impugned law/provision was logical or not as part of the Constitution Court recognized that the provision must be interpreted in cognizance of its history and background, so as to make sure that the individual appreciates the full measure of his fundamental rights so that the relevant substance of the rights are not negated. Court showed that historically, Articles 20 and 21 of the Constitution were introduced to broaden the arena of representative democracy and participation in public affairs. In the scheme of the Constitution, this is one of the basic rights of the citizens of Tanzania. Court had also seen that party qualification to contest for elective posts was unknown before the 1965 Interim Constitution and the entrenchment of the one party state. So it emerged and continued to dominate all the subsequent Constitutions as a legacy of one party policy. So, it cannot be gainsaid that during the one party state, the right to participate in being voted to power was restricted to party members. With the insertion of the Bill of Rights in 1985 and later multipartysim in 1992, party membership qualification was hardly or of little relevance, except as a legacy of the one party structure because not only party monopoly was abolished by Article 3 of the Constitution but also it was expressly forbidden under Article 20 (4) to force any person to join any association or party. It is in the light of these developments that court took the firm position that Articles 20 (4) and 21 (1) entrench fundamental rights, and Articles 39 (1) (c) and 67 (1) (b) must be construed so as to achieve the full measure of those fundamental rights. On a full and deep consideration, court was of the settled view that Article 39 (1) (c) and 67 (1) (b) make a substantial inroad into those rights guaranteed under Articles 20 (4) and 21 (1) of the Constitution. Court was also satisfied that the Respondent has failed to discharge his burden to justify the said restriction, because, first, it is historical, secondly they have not produced any evidence to substantiate their fears on private candidates. It is true that Article 3 introduced a multiparty political system but court did not think that this is inconsistent with private candidacy. Private candidacy could well exist alongside multipartyism as was indeed the case before the 1965 Interim Constitution. Court in addition carefully considered the balance of the scale of the functions impact and, importance of the impugned Articles, against the form and effect of the breach caused by the said Articles, and was satisfied that the infringement is a substantial and illegitimate inroad into the fundamental rights and we think such trends must be nipped in the bud, if our constitution has to remain a respectable fountain of basic rights.As Mwalimu Julius K. Nyerere, put it in his book Our Leadership and the Destiny of Tanzania, Harare African Publishing Group 1995, p. 9, quoted by Prof. Issa Shivji in his article Constitutional Limits on Parliamentary Powers, This is too dangerous. Where can we halt If one section of the Bill of Rights can be amended, what is to halt the whole Bill of Rights being made insignificant by qualifications of and amendments, to all its provisions So in conclusion on the above two issues, court wished to make it very plain that in our view Act 34 of 1994 which amended Article 21 (1) so as to cross reference it to Articles 5, 39, and 67 which introduced into the Constitution, restrictions on participation of public affairs and the running of the government to party members only was an infringement on the fundamental right and that the restriction was unnecessary and unreasonable, and so did not meet the test of proportionality. Court thus proceed to declare that the said amendments to Articles 21 (1) 39 (1) (c) and 67 (10 (b) are unconstitutional. Court ended on the note of saying, We have, we hope, amply demonstrated above that the amendments introduced by Act 34 of 1994 into Articles 21(1), 37(1)(c) and 69(1)(b) of the Constitution, do not meet that test as they seek to make a substantial inroad into a fundamental right of the citizens to participate in the affairs of their government. We are of the unshakeable view that political party membership as a qualification to being nominated for an elective post is too unnecessary a restriction, for the purposes of achieving and maintaining morality, public order and general welfare of the people. 4.2.4 Pakistan (continued) In 2005, in the case of Pakistan Lawyers Forum Vs. Federation of Pakistan, the Supreme Court while deciding the constitutionality of 17th Amendment to the Constitution, it 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. Court said that this cant be exercised by the judiciary but by the body politics of the country. Furthermore, it was observed that this Court can only set aside a constitutional amendment if it is not passed in accordance with the procedure of passing an amendment as laid down in the Constitution. Finally the court concluded that the theory of basic structure or salient features, insofar as Pakistan is concerned, has been used only as a doctrine to identify such features. The Eighteenth Amendment of Pakistans Constitution in the new version of Article 6 unequivocally bars the judges from extending judicial cover to militarized or unconstitutional maneuvering. Similarly new version of Article 270 has established that verdicts delivered in accordance of unconstitutional engineering were void ab initio which has purified our fundamental law to augment its coherent correctness. Article 175A of the Constitution embodied new composition and procedure for the judiciary. Considerable weight has been given to judges recommendations in the procedure designed for selection of judges. Composition of commission has apparently tilted the balance in favour of judges. This new procedure ended the monopoly of any individual and gave due part to all necessary sections of the state. Eighteenth amendment was challenged before the Supreme Court of Pakistan by many petitioners on various grounds out of which two are worth emphasising. First ground was the conflicted nature of eighteenth amendment with the basic structure of the constitution. Track record of Supreme Court of Pakistan obstructs the channel through which basic structures theory prevailing in Indias legal structure can be infused into Pakistani jurisprudence. This theory triggered a clash between Indian parliament and court which remained frictional for a long time. The main theme of the theory projected in this case decided by Supreme Court of Pakistan is that the power of two third of the total membership of parliament to amend the constitution is limited and subjected to judiciarys guardianship when an amendment tries to alter the fundamental framework of the constitution. Article 239 of the Constitution of is vital in this regard which provides that judiciary should not attempt to entertain the petitions challenging the constitutional amendments which can be brought by parliament at any time. No limitations have been put on parliament regarding its power to amend the constitution under article 239 of the constitution of Pakistan. In presence of article 239 invocation of basic structure theory requires judiciary to interpret the unclear contents of article 239 in the way in which a judge can reflect the process of giving meaning to constitutional articles based on his personal like and dislikes as the will of individuals seeking the justice. Constitution-makers of the 1973 Constitution of Pakistan didnt settle the basic attributes building up the structure of constitution before its enactment by the constituent assembly. They didnt provide any procedure through which such structural attributes can be anchored to evolving political dynamics. Hassan Ahan Javed reviews the constitutionality of the recently passed Twenty First Amendment 2015 to the Constitution of Islamic Republic of Pakistan, 1973, in light of the existence of basic structure in the Constitution, as has been declared by the higher Courts. This 21st Amendment was passed in the aftermath of 16th December, 2014s tragic incident of terrorist attack on Army Public School, Peshawar, which left 141 dead, including a majority of children and other staff members. The government of Pakistan in collective efforts with the army in a bid to console the mourning nation and to wipe the tears of every mother who had suffered the demise of their children in this despicable attack, the two arms of government decided to wipe out terrorism from the country. In furtherance of their resolve the government decided to legislate military courts, through the regulating of their operations which would from hence forth inherently, be protected from any contravention of the fundamental rights, as guaranteed in the Constitution, as an outcome of the said Amendment. The primary reason for enacting of the said amendment was to give constitutional cover to the creation and operation of the military courts seeking to convict the terrorists who have not been convicted either for non-availability of evidence, or because of inability of prosecution to prove their offences beyond reasonable doubt. This was depicted in the preamble to the said Amendment Act and states that, to take care to the existing exception circumstances of grave and unprecedented threat to the integrity of Pakistan, special measures are needed to be established for speedy trial of the crimes relating to terrorism and waging of war against Pakistan. As an outcome under the shield of this constitutional cover, military courts were established to carry out the trial of select few cases dealing with terrorism. The Constitution initially established three constitutional courts under Article 175 which include the Supreme Court of the country High Courts for all the four provinces and a High Court for Islamabad Capital Territory and, the Federal Shariat Court set up in Article 203 C whose jurisdiction and authority have been enshrined in the Constitution itself. With the passing of 21st Amendment (along with the subsequent amendment in Pakistan Army Act, 1952, a special court has been created for the trial of terrorists belonging to certain organizations which work under the name of a religion or a sect. It is argued that, by constituting this special court, through a proviso to Article 175 of the Constitution, the legislature has curtailed the power of other Courts. As a second fold of the said 21st Amendment, certain other secondary legislations have been protected from the applicability of prohibitory clause of Article 8 of the Constitution. Pursuant to the passing of the 21st Amendment, the same is now before the august Supreme Court of Pakistan, and in this regard, the arguments have been made that the 21st Amendment is encroaching upon the basic structure of the Constitution, and is, therefore, liable to be declared as unconstitutional. As for now, the 17 member (full) bench of the Supreme Court of Pakistan has reserved its decision on the validity of 21st Amendment, and yet to release the verdict. The Constitutional Tribunal, a sole guardian of the Constitution, has found itself in a stalemate since autumn 2015 when the Law and Justice Party (PiS) came into power. The Law and Justice submitted a bill that changed the requirement of simple majority required for the Constitutional Tribunal to pass rulings to a two thirds majority. This was in addition to a requirement of quorum of 13(thirteen) of the 15(fifteen) judges of the court rulings to be legitimate, instead of the prior 9(nine). In addition the court was to adhere to the taking up of cases in their chronological order in which they were submitted. Tribunal judges in a majority ruling supported by 10 of the 12 present sitting noted that however the changes recently adopted by the conservative Law and Justice party prevented the tribunal from working reliably and effectively. Critics say the changes have paralyzed the court, depriving it of the power to prioritize cases and preventing it from acting as a check on any new laws that Law and Justice passes. In the judgment K47/15, the Tribunal reviewed the constitutionality of the December 22, 2015 Act amending the Constitutional Tribunal Act. The questioned areas pertained chiefly to the issue of independence of the Tribunal from the legislative, which changed its functioning among other things by rising the quorum requirement to thirteen (of fifteen) judges and majority requirement from simple to qualified (two thirds) in taking the decisions initiated by an application. 4.2.5 Colombia In I.R. Coelho v. State of Tamil Nadu (2007) AIR 2007 SC 86 case, a bench of 9(nine) judges confirmed the validity of the basic structure doctrine. This case arose from the Constitution (Thirty fourth HYPERLINK https//indiankanoon.org/doc/1210757/ Amendment Act, the Janmam Act, which in its entirety, was inserted in the Ninth Schedule. By the Constitution (Sixty sixth HYPERLINK https//indiankanoon.org/doc/1210757/ Amendment Act,) the West Bengal Land Holding Revenue Act, 1979, in its entirety, was inserted in the Ninth Schedule. The insertions that were the subject matter of challenge in these appeals and writ petitions were the following the contention that these Acts, inclusive of the portions thereof which had been struck down, could not have been validly inserted in the Ninth Schedule. It rests on two counts (1) Judicial review is a basic feature of the Constitution to insert in the Ninth Schedule an Act which, or part of which, has been struck down as unconstitutional in exercise of the power of judicial review is to destroy or damage the basic structure of the Constitution. (2) To insert into the Ninth Schedule after 24th April, 1973, an Act which, or part of which, has been struck down as being violative of the fundamental rights conferred by Part-III of the Constitution is to destroy or damage its basic structure. Court considered that all constitutional amendments made after the decision in Keshavananda Bhartis case would have to be tested by reference to the basic structure doctrine, for Parliament would then have no excuse for saying that it did not know the limitation on its amending powers. Court adding that in this very case where a constitutional amendment included a statute or statutes in the Ninth Schedule, its constitutional validity would have to be considered by reference to the basic structure doctrine and such constitutional amendment would be liable to be declared invalid to the extent to which it damages or destroys the basic structure of the Constitution by according protection against violation of any particular fundamental right. Citing all the aforementioned cases and recognizing the judicial mandate on doctrine of basic structure and the power of judicial review, it concluded that after 24th April 1973 (the date of the decision in Kesavananda Bharati), laws placed in the Ninth Schedule would not enjoy blanket immunity but the court will examine the nature and extent of infraction of a fundamental right by a statute, sought to be constitutionally protected, and on the touchstone of the basic structure doctrine as reflected in Article 21 read with Article 14 and Article 19 by application of the rights test and the essence of the right test. Applying the above mentioned tests to the ninth schedule laws, if the infraction affects the basic structure, then such a law(s) will not get the protection of the ninth schedule. With regard to a law judicially pronounced to be violative of fundamental rights and which is subsequently inserted in the Ninth Schedule after the 24th April 1973, the Court ruled that such a violation/infraction shall be open to challenge on the ground that it destroys or damages the basic structure as indicated in Article 21 read with Article 14, Article 19 and the principles underlying there under.. The court found that establishing the constitutional validity of the ninth schedule laws could be determined by applying the direct impact and effect test that is commonly known as the rights test. The rights test considers that it is effect of the law and not its form that would be the determinative factor. It is the duty of court to determine if this interference is warranted and if does or does not contravene the basic structure. As stated, the duty of the court is determination if invasion was needed and if answered in the affirmative, to what extent. This position then serves to shift the determination of the need for the law from the Parliament to the courts for decision. It also allows the courts the flexibility of both the rights test and the essence of rights test in dealing with the validity of such cases. The determination of the effect of the infringement in either case would be for the courts to determine. In Coelho (2007), the larger nine-judge bench held that any law (including laws added to the Ninth Schedule after April 4, 1973) infringing upon the fundamental rights that were found to have violated the basic structure doctrine, must be invalidated by the Court. Thanks to the basic structure doctrine the judiciary cannot be deprived of the power of judicial review nor can the rule of law be abrogated. Again thanks to this doctrine, federalism cannot be obliterated and States made vassals of the Centre. The bad experiences of the emergency period have further added the significance to the power of the judicial review, which is the most powerful remedy against the state arbitrariness and protection of fundamental rights. In the Indian context and experience substantial gains resulting from the basic structure doctrine and a bulwark against further erosion of basic fundamental rights. 4.2.6 Turkey The Turkish constitution for example, has particular clauses that cannot be amended. One such clause relates to the secular character of the State which is an entrenched provision in the constitution. In June 2008, court annulled Parliaments amendments to the Constitution regarding the principle of equality and the right to education. 4.2.7 Belize In HYPERLINK http//www.belizelaw.org/supreme_court/judgements/COA2010/Civil20Appeal20No.20720of20200920-20The20Attorney20General20of20Belize20and20Barry20Bowen20AND20The20Attorney20General20of20Belize20and20Belize20Land20Owners20Association20Ltd.20et20al.pdf Bowen v Attorney General BZ 2009 SC 2, a group of landowners petitioned the Constitutional Court challenging the constitutionality of the Belize Constitution (Sixth Amendment) Bill 2008. The Bill was intended to aid the Government to exploit the recent discovery of oil in the country. Clause 2 of the Sixth Amendment therefore sought to remove the protection given by s. 17(1) of the Belize Constitution to the owners of petroleum minerals and related substances, in whatever physical form found on or under the territory of the nation of Belizethe absolute property and control over which are exclusively entrusted, and shall be believed to always to have been so entrusted, in the Government of Belize. The purported effect of the legislation would thus have been to deny to the owners of any such interests in land the right to apply to the courts for compensation in the event of being arbitrarily deprived of such interests by the State. Lawyers for the Attorney General submitted that because the special three quarters majority established by section 69 of the Constitution had approved the Sixth Amendment therefore its constitutionality could not be questioned. But Chief Justice Conteh did not agree with this position. He was of the opinion that the authority of the Belizean Parliament to make laws is not unlimited to the extent that the Belizean Parliament cannot legitimately enact laws that violate the basic structure of the Constitution itself. In the Chief Justices view, the basic structure comprised not only the fundamental rights guaranteed by Chapter II of the Constitution, but also the principles, ideas, beliefs and desires of the people of Belize as enshrined in the Preamble of the Constitution, which include, among other things, respect for the rule of law and the right of the individual to the ownership of private property. The Chief Justice also had regard to the principle of the separation of powers, which had previously been recognised by the Judicial Committee of the Privy Council (JCPC) into a basic feature of the structure of the Westminster type Constitutions adopted by Commonwealth Caribbean countries upon independence ( HYPERLINK http//www.bailii.org/uk/cases/UKPC/1975/1975_22.pdf Hinds v The Queen 1977 AC 195). This principle would be violated if the citizens of Belize were to be denied access to the courts for compensation for the arbitrary derivation of their property by the State. 4.2.8 USA-California Under California law, the state judiciary has the power to invalidate constitutional amendments on the grounds that they constitute impermissible revisions to the Constitution, if an amendment effects far-reaching or substantial changes in the basic governmental plan or framework of the California Constitution. 4.2.9 Belize (continued) Belize is a Caribbean country that is a member of the common wealth with no formal limitations to the power of amendment enshrined in its written constitution. In Belize, the authority to amend the constitution rests only absolutely with the national legislature and the Governor General, who must assent to a constitutional bill. Still in Belize recently the Basic Structure doctrine was reviewed in two cases. In the first case of B M. Bowen v. Attorney General of Belize, Claim. No. 445 of 2008 (2009) (Supreme Court) the Court short-circuited an amendment that had been approved by the national legislature but not yet given assent by the Governor General. The amendment was intended to deny land owners certain oil-related property rights. The Chief Justice, noted in his judgement that the national legislature did not have the power to enact laws that violate the entrenched fundamental rights but also the broader values of the constitution including those set out in the preamble. In the second case of HYPERLINK http//www.belizelaw.org/supreme_court/judgements/Legal2012/EIGHTH20AMENDMENT.pdf British Caribbean Bank Ltd v AG Belize Claim No. 597 of 2011, the constitutionality of the Belize Telecommunications (Amendment) Act 2009 (TCA 2009) was challenged. The reason for this amendment was to enable the Government to compulsorily acquire the properties, rights and interests held by the applicants in Belize Telemedia Ltd, a major provider of telecommunications services in Belize. Though the challenge to the constitutionality of the legislation had been dismissed at first instance it had been upheld by the Court of Appeal on the grounds, inter alia, that the TCA 2009 was contrary to the right to property under section 17(1) of the Constitution in so far as it did not prescribe the principles on which reasonable compensation was to be paid for the acquisition of the applicants property within a reasonable time. The second Belizean case was similar to the controversy in Minerva Mills in which court examined whether the national legislature could amend the Constitution to protect its amendment power against judicial review Herein what was reviewed was that the Belizean National legislature had enacted an amendment giving plenary power to the legislature to amend the Constitution. The Court rejected the amendment out of concern that it would authorize the legislature to destroy the Constitutions core commitments. 4.2.10 Poland Polands Constitutional Tribunal ruled that new rules introduced by the new government to regulate how the court functions are unconstitutional. Judges ruled that many of the laws passed which fundamentally change how the 15 judge court functions breach Polands Constitution. While it bolsters the moral position of government critics alarmed at what they see as an attack on democracy, the judgement is nonetheless powerless to resolve the crisis because the conservative government of Prime Minister Beata Szydlo says it wont treat it as valid. The Law and Justice Party regarded the judgment as a non-formal gathering of judges and not an official sitting of a Constitutional Court and consequently declared that it will not publish it. This, indeed did mean that the judgment would have a non-binding effect in other similar cases, and that the only party that will consider it in its proceedings would be the Tribunal itself. The Constitution under Article 190(1) and (2) stipulated that judgements of the tribunal shall be published immediately in order to have the effect of being applicable in other cases even when they are final already. Ordinarily the non-fulfilment of the requirement of publishing the judgement at first sight may appear insignificant and one may look at it as a ceremonial procedure. This requirement had appeared for the first instance in almost thirty years of democracy in Poland. On one hand, it violated the well-worn constitutional conventions, referred by the Judge Marek Zubikin K34/15 as established European and international standards, and on the other hand triggered a serious legal conundrum. Kamila Gaisiuk Pihowicz, an opposition legislator stated if the court judgements are not respected it will lead to the biggest constitutional crisis in Poland since the country adopted democracy in 1989. In a Venice Commission report, an expert body with the Council of Europe human rights group, which reviews the changes to the court, it stated that changes to the court threaten the status of human rights, rule of law and democracy in Poland. The position has caused some unrest in the European Union and has led to the initiation of an investigation in that regard. The United States is also concerned. This has made 3(three) United States Senators, among them John McCain, to communicate in writing to Szydlo stating that they fear changes to the court could serve to shrink democratic norms, including the rule of law and independence of the judiciary. She and other leaders replied to the senators that they were misinformed about the country and do not have the right to lecture Warsaw about its internal affairs. 4.2.11 Hungary Hungary a state in central Europe adopted a new constitution on 1 January 2012. From even before that date, there has been considerable international comment to the effect that the governing Fidesz party, led by Prime Minister Viktor Orban, has misused its parliamentary majority to pass laws which have laid the path for authoritarianism. The opponents of the new Hungarian Constitution have pointed in particular to two major issues judicial independence and fair electoral laws. The temple of justice which is the court has been rendered operationally dead. The jurisdiction of what the court can review has been limited to non economic legislation, unless it has a severe impact on fundamental rights new positions have been created on the bench, promptly filled by Fideszs political allies and the court can no longer rule on the constitutionality of legislation in the abstract. The National Justice Office will be established that will wield the authority to appoint new judges, transfer them to different courts, and will soon be able to determine which public prosecutor and judge will adjudicate and preside on case. A spokesperson for Prime Minister Orban has argued that the independence of the judiciary is not at risk because the National Justice Office cannot dictate the outcome of a case. This argument is simplistic a fundamental ingredient of the independence of the judiciary is its immunity from being selected, moved around and placed on certain cases. The Executive must be completely separate from the Judiciary. The amendments impose more overtly political management of almost all independent public institutions and this is extended to the electoral Commission. The question remains then do these measures violate constitutional norms, although they are validly and democratically implemented But while the rule of law is a subjective concept dependent on the relevant political model, we would argue that there are some key ingredients that, if compromised, undermine the rule of law to the point of non existence. The independence of the judiciary is one. The ability for the judiciary to police the Executive adequately and the Legislature to protect the rights of individuals and to curb arbitrary use of power is a fundamental tenet of the rule of law. In the Hungarian case, this independence has unquestionably been compromised by the severe restriction of the ambit of judicial review and the infiltration of party politics into positions of power over the judiciary. Fair electoral laws are another basic constitutional norm necessary for a democracy that adheres to the rule of law. Therefore the manipulating of electorates to ensure a continued supermajority in Parliament is a step too far. The new Constitution of Hungary runs the risk of not being respectful of the democracy in this country as it so fragrantly contravenes constitutional norms. In regard to this constitution the Venice Commission has raised grave concern specifically on this phrase in the Constitutions preamble We do not recognize the communist constitution of 1949, because it was the basis for tyrannical rule and, thus we proclaim it to be null. Instead of declaring the previous Constitution to have been repealed, this specific wording proposes the acceptance of extuncnullity which could have the effect of rendering all acts of state passed under the former Constitution illegal and will thus be null themselves. Further the Venice Commission suggests that such an interpretation could mean case law decided in accordance to the now invalid Constitution would also be declared a nullity even Constitutional institutions established under it like Parliament could be declared legally inexistent. The deliberately vague wording means that such as outcome, while very unlikely, is possible. Such a possibility bodes very ill for the future of the rule of law in Hungary. The situation in Hungary raises such questions is it legitimate for a government supported by a large electoral majority to weaken constitutional safeguards of the separation of powers and, is the Hungarian government just trying to cope with external pressures while enforcing the will of the people/ or are we witnessing a systematic destroying and extinguishing of constitutional democracy as some opponents allude Jeffrey Goldsworthy has now accepted that there are many more people who view fundamental rights enshrined in the constitution as being more favourable to the superiority of Parliament. 4.3 Conclusion In different jurisdictions in the global world, the basic structure doctrine has been applied majorly to address the curb on the judiciary powers by government having supermajority representation in parliament that enables governments to pass laws that amend constitutional provisions/principles that are core fundamentals of the Constitution such as separation of powers that do not favour their rule. CHAPTER FIVE CONCLUSIONS AND RECOMMENDATIONS 5.1 Introduction Constitutional amendment rules are fundamental to codified constitutions in constitutional democracies. Constitutions generally create the rules of the game in a society but amendment rules create the rules for changing the rules. In most jurisdictions modifications of Constitutions in the form of alterations, repeals and others are a preserve of the Parliament. Consequently the constitution can change often and continuously. Parliaments powers in amending Constitutions are restricted to enshrined procedures in Constitutions and specific context or text but in most cases the amendment is limited to not being against the basic structure features of every Constitution that differ from jurisdiction to jurisdiction. 5.2 Conclusions The study draws upon the rich vein of jurisprudential thinking from judiciaries around the world to analyse the puzzle of the unconstitutional constitutional amendment. In recent years, the debate has been expanding, but the jurisdictions covered are usually the same (Germany and India are the paradigm models for explicit and implicit limitations on the amendment power, respectively). This study takes a broad approach. It focuses on more than one single jurisdiction and continent and in addition not even exclusive to on one type of legal system (in this case the most of either common law or civil law) because the application of the basic structure doctrine should suffice for most contemporary developed constitutional democracies. A focal point of the study is that comparative constitutional law reveals a pattern of behaviour, according to which, in exercise of their powers, amendment authorities are increasingly bound by certain limitations. My certain observation of enshrining unamendable provisions in constitutions demonstrates that an increasing percentage of world constitutions are expressing explicit limitations on the constitutional amendment power of the legislature. The trend of development of the basic structure doctrine unveils a set of implicitly unamendable constitutional core principles in the progress of constitutional law. The global trend in constitutionalism is inclining towards accepting substantive limitations on constitutional amendment powers. This study is premised on the central theme of the basic structure doctrine. It defends a broad and robust concept of limitations to the amendment power, which includes both explicit and implicit substantive limitations. These limitations on the constitutional amendment power are based upon a solid theoretical ground. They are compatible with the nature of amendment powers. The amendment power is an extraordinary constituted power, as such a sui generis one. But, it is still a defined constitutional authority and accordingly as such, it is (and must be) a restricted power. The basic structure doctrine therefore limits the amending authorities from amending certain constitutional fundamentals that sometimes are a reflection of the aspirations of the people of that country. In furtherance of this it is noted that underlying to this lays the understanding that constitution making is built upon certain principles, which give it its identity and distinguished character, thus amending them would bring an end to the nature of constitution and give way to creation of a new one instead. Amendments which alter the constitutions basic features in order to change its identity signal a breakdown of the existing constitutional system and in the extreme in some instances could lead to its repealing and replacement with a new one. The doctrine forms the basis of a limited power of the Supreme Court to review and strike down constitutional amendments enacted by parliament which conflict with or seek to alter this basic structure of the constitution. The Basic features of the constitution have not been explicitly defined by the judiciary, and the claim of any particular feature of the courts to be a basic feature is determined by the court in each case that comes before it. It should therefore not be viewed as absolutely preventing democratic deliberation on a given unamendable matter, however ensuring that certain changes in constitutional law take place within the ambits of the proper channel of higher-level democratic deliberations. 5.3 Recommendation The constitution gives authority to the legislative body specifically the Parliament in any country to make law in their respective jurisdiction. 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