The basic structure doctrine: a basis for application in South Africa, or a violation of the separation of powers?

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The basic structure doctrine was first introduced in 1973 by the Indian supreme court in an attempt to prohibit the dominant Congress Party from abusing its power to amend the Indian Constitution. The doctrine determines that an amendment is unconstitutional if it infringes, negates or substitutes the basic structure of the Constitution, regardless of whether all the formal and procedural requirements for the amendment are met. In Kesavananda Bharti v Union of India (1973) 4 SCC 225 (India)the supreme court found that the word “amendment” does not entail the destruction of the fundamental characteristics of the Constitution, as they form part of an unamendable basic structure. The court also questioned whether amendments necessarily reflect the wishes of the electorate, as it is relatively easy to amend the Indian Constitution, leaving it vulnerable to abuse by a dominant party. What constitutes the “basic structure” of the Constitution became clear over time, as the doctrine was used in subsequent cases. However, in the Kesavananda case the court had already identified the power of judicial review, democracy, federalism, the separation of powers, the secular character of the state and certain fundamental rights such as freedom and equality as part of the basic structure doctrine.

The doctrine has elicited criticism, primarily as an infringement of the separation of powers between the judiciary and the legislature. By way of the basic structure doctrine, courts, as non-democratically elected bodies, are able to overrule a decision made by the democratically elected legislature. This is quite unconventional, as the Indian Constitution envisions a strict separation of powers between the legislature, the judiciary and the executive, comparable to the American system. Academics have, however, argued that the non-democratically elected Indian supreme court has replaced the doctrine of a separation of powers with a form of judicial supremacy – emphasising the role of the judiciary as the final protector of the Constitution. Traditionally, courts must, by way of checks and balances, ensure that the other spheres of government act in accordance with their functions and the Constitution. Indian courts have interpreted this duty very widely, arguing that there is no real difference between judicial review of normal legislation and judicial review of a constitutional amendment, as both these actions are aimed at the protection of the Constitution and the democratic state. In this sense, courts are only performing their traditional role, with the basic structure doctrine acting merely as a manifestation of the checks and balances that are central to India’s interpretation of the separation of powers.

Thus far this approach to the separation of powers has worked well in the Indian context, mainly as a result of an overwhelming public perception that the Indian legislature is ineffective, unstable and corrupt. In contrast, the judiciary is regarded as the only legitimate sphere of government and the guardian of the public’s fundamental rights. The question has long been debated whether the basic structure doctrine can be applied in the South African context, and while it has been considered by the constitutional court, no final decision has been taken in this regard. InPremier, KwaZulu-Natal v President of the RSA 1996 1 SA 769 (CC) and Executive Council, Western Cape Legislature v President of the Republic of South Africa 1995 4 SA 877 (CC), the court referred to the doctrine, hinting at the possible application in South Africa. In UDM v President of the RSA 2003 1 SA 495 (CC) the constitutional court, however, was unwilling to consider the basic structure doctrine, stating that an amendment passed in accordance with the formal and procedural requirements form part of the Constitution and cannot be challenged as an infringement of its basic structure. But these statements are obiter as the legislation in question was not regarded as a threat to the basic structure of the Constitution.

In this article it is suggested that there are certain textual and contextual differences between South Africa and India that hinder the application of the doctrine in South African law. From the outset it is important to note that it is much easier to amend the Indian Constitution than our Constitution. While the Indian Constitution can be amended by a simple majority, a much higher procedural threshold is set by the South African Constitution. The Indian Constitution is thus much more vulnerable to abuse by the legislature, justifying the judiciary’s legitimate concern in protecting 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 do not have as liberal an interpretation of the separation of powers as their Indian counterpart. While 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 separation between the different spheres of government, the model of separation of powers that has developed under the Constitution has always seen 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. Roux (2014:27) refers to the South African constitutional court as a “constrained court” that attempts to justify their decisions with the text of the Constitution in order to protect their institutional independence. This is indicative of a very formalist legal culture and a conservative approach to the separation of powers. Unlike the Indian supreme court, the South African constitutional court will attempt to justify the application of the basic structure doctrine through the text of the Constitution – an unlikely development in light of the fact that the Constitution itself allows for the amendment of the entire Constitution.

Roux (2014:23) suggests an alternative approach for the constitutional court in protecting the basic structure of the Constitution. He argues that the court must progressively strengthen its institutional role by shifting the borders of its traditional functions. Over time a legal culture will develop that is justified by the text of the Constitution and strong enough to withstand a challenge to the basic structure of the Constitution.

This argument is convincing in the sense that it is sensitive to the context within which courts function in different jurisdictions and states. It also has the effect of ensuring that the legal culture that does develop as a result of this process does not constitute a sudden departure from the existing legal culture. The problem is, however, that this approach takes time to develop and there is no guarantee that the development will be consistent enough to ensure that the court will be able to withstand an attack on the Constitution. It also makes no provision for a sudden attack on the basic structure of the Constitution. In this instance South Africa, much like the Indian supreme court, might be forced to accept the basic structure doctrine in order to protect the supremacy of the Constitution. Should such a decision be made, it would mean a significant departure from the existing South African model of separation of powers that may very well infringe on the delicate balance the constitutional court has tried to establish between the different spheres of government.

Keywords: basic structure doctrine; constitution; constitutional court; democracy; India; separation of powers

Read the article in Afrikaans: Die basiese-struktuur-leerstuk: ’n basis vir die toepassing in Suid-Afrika, of ’n skending van die skeiding van magte?

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