What is actually the basic feature doctrine? | The Daily Star
12:10 AM, June 05, 2018 / LAST MODIFIED: 12:46 AM, June 05, 2018

Constitutional Analysis

What is actually the basic feature doctrine?

Anwar Hossain Chowdhury & Others v Bangladesh (1989) BLD (SPL) 1 (hereinafter '8th Amendment Case') marks the beginning of judicial review of constitutional amendment in Bangladesh. The 8th Amendment Case set forth the famous basic feature doctrine which laid down a test for determining substantive compatibility of any constitutional amendment vis-à-vis the Constitution (see Kawser Ahmed, 'Review of a constitutional amendment: What does legally matter?', The Daily Star, 29 May 2018, p.14). The majority of judges in this case, although, avowedly relied on the basic feature doctrine to gauge validity of the amendment to article 100 of the Constitution, they did not seem inclined to provide any detailed theoretical exposition thereof. Perhaps, this is also the reason why the basic feature doctrine remains the most misunderstood legal doctrine in Bangladesh. This essay aims to shed light on the underlying idea of the basic feature doctrine.

A reading of the concurring opinions rendered in the 8th Amendment Case makes it clear that the judges rather chose to provide an analogical account of their ideation of the basic feature doctrine. For example, Justice Shahabuddin Ahmed compared the basic features of the Constitution to the pillars of a building, while Justice Badrul Haider Chowdhury referred to the same as unalterable fabric of the Constitution. In other words, the majority of judges in the 8th Amendment Case viewed basic features as the core ideological notions of the Constitution.

In concrete terms, the judges relied on two propositions to draw up their ideation of the basic feature doctrine. First, the basic features of the Constitution cannot be amended in exercise of the amending power of the legislature. The second one is any amendment to the Constitution is subject to retention of its basic features and can be declared void if adjudged inconsistent therewith. The judges sought to resolve the dichotomy between the above propositions by introducing the concept of valid constitutional amendment – which means amendments to the Constitution are permissible so far as they do not impinge on the basic features of the Constitution.

At this point, the question that would cross everyone's mind is how the Constitution and the basic features are related with each other. Whether the Constitution needs to be in line with the basic features, or the basic features are embedded in the Constitution. The majority of judges in the 8th Amendment Case adopted the last-mentioned approach. Most probably, the reason is if the Constitution is required to be aligned with the basic features, it then follows that the Constitution and the basic features are asymmetrically related two separate things. As per this paradigm, the Constitution assumes a deuterocanonical status and therefore, any constitutional provision, be it original or amendment, if does not ostensibly appear to conform to the basic features would entail a compatibility issue (this approach would even warrant scrutiny of an original constitutional provision if appears to be inconsistent with the basic features).

Alternatively, if the basic features are thought of as embedded in the Constitution, it means that these notions are part and parcel of the Constitution. Accordingly, any inconsistency with the basic features will eventually come to be regarded as inconsistency with the Constitution. As per this paradigm, only the constitutional amendments could be held invalid in case they fail to be consistent with the basic features. The majority of judges in the 8th Amendment Case well understood the problem associated with the first paradigm because the Constitution, if regarded as a follow-on from the basic features, not only loses its autochthonous status but also ceases to be the supreme law of the country. The Supreme Court is then logically stripped of its authority to invalidate any inconsistent constitutional amendment for the reason that the Supreme Court owes to the Constitution for its existence and is mandated to uphold the Constitution, and nothing else.

The next issue down the line is how to recognise the basic features of the Constitution. The majority of judges in the 8th Amendment Case did not identify the basic features with any constitutional provisions. Rather, they were of the view that the basic features should be inferred from the text of the Constitution. For example, it is not the text of article 1 of the Constitution, but the notion of unitary republic as embodied in article 1 is a basic feature. Accordingly, the text of article 1 can be amended, however, the notion that Bangladesh is a unitary republic cannot be changed. It should be noted that since the basic features are to be inferred from the text of the Constitution, it behoves that they have to be understood, explained and applied exactly the same way they have been set out in the Constitution.

Apart from the foregoing, the method of scrutiny for determining validity of constitutional amendments deserves attention for at least one simple reason that an amendment would naturally be inconsistent with the constitutional provision that it seeks to modify or take the place of. The test therefore, first of all, is not about how much an impugned amendment is inconsistent with the provision to be amended, rather how much it is consistent or inconsistent with any given core ideological notion that is to say- a basic feature. In addition, the majority of judges in the 8th Amendment Case pinpointed whether an amendment in question had created functional incongruities in relation to application of other constitutional provisions. The advantage of this approach is that it even allows scrutiny of amendments by which brand new provisions are freshly incorporated in the Constitution.

Analogically, the method of scrutiny as applied in the 8th Amendment Case could be compared to solving a jigsaw puzzle. If the entire Constitution were imagined as a jigsaw picture, each of its provision could then be compared to a puzzle piece. In order to replace an existing puzzle piece, the new one should be able to fit into and make up the picture not only completely but also satisfactorily. If any new puzzle pieces are added, they should create no anomaly to the puzzle picture rather complement it.

The judges subsequently applied the aforesaid 'jigsaw test' in the 13th Amendment Case in order to explain how the impugned 13th amendment was both theoretically and functionally inconsistent with the basic features of the Constitution. The judges in this case recognised, among others, democracy and parliamentary system of government, as the basic features of the Constitution and showed how the newly inserted provisions relating to Caretaker Government in one way and another negated these basic features.

The impact of the basic feature doctrine did not remain confined to the outcome of the concerned cases only. It is clear from the opinions of the majority of judges in the 8th Amendment Case that they intended the doctrine to serve as an effective measure against frequent amendment to the Constitution for the sake of party interest but at the cost of democracy. Moreover, the said judges noted that amendments should be meant for either removing defect or making improvement to the Constitution. This particular observation signifies a tacit indication of willingness on the part of the judges to take up 'quality' as a matter in issue in deciding a constitutional amendment's compatibility vis-à-vis the Constitution in appropriate circumstance(s).

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