UK Constitutional Law Association

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Derek O’Brien: The Basic Structure Doctrine and the Courts of the Commonwealth Caribbean

derek-obrien-33The basic structure doctrine, as first expounded by the Indian Supreme Court in the early 1970s in Kesavanand Bharati v Kerala (A.I.R. 1973 SC 1461), asserts that the law-making powers of a legislature are not unlimited in as much as they do not extend to altering the ‘basic structure’ of the constitution. Some 40 years later the same doctrine has been invoked in two cases by the Supreme Court of Belize to strike down amendments to the Constitution of Belize. In both cases the legislation amending the Constitution had secured the special majority in the House of Representatives required by the Constitution, but was nevertheless struck down by the Supreme Court on the grounds that the legislation violated the basic structure of the Belize Constitution. The cases are of interest not only because they are the first, and so far the only, examples of the basic structure doctrine being invoked by a Commonwealth Caribbean court, but also because they offer a valuable insight into how a dispute between the courts and the executive with regard to the implied limits on a legislature’s law-making powers might play out.

In the first case, Bowen v Attorney General BZ 2009 SC 2, a group of landowners sought to challenge the constitutionality of the Belize Constitution (Sixth Amendment) Bill 2008 (the Sixth Amendment). This was intended to enable the Government to exploit the recent discovery of oil in the country. Clause 2 of the Sixth Amendment thus sought to disapply the protection afforded by s. 17(1) of the Constitution to the owners of :

‘petroleum minerals and accompanying substances, in whatever physical state located on or under the territory of Belize…the entire property and control over which are exclusively vested, and shall be deemed always to have been so vested, 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 argued that since the Sixth Amendment had been approved by the special three quarters majority required by s.69 of the Constitution there could be no challenge to its constitutionality. Chief Justice Conteh, however, disagreed. In his view the law-making powers of the Belizean Parliament are not unlimited in as much as the Belizean Parliament cannot ‘legitimately’ make laws that are contrary to the ‘basic structure’ of the Constitution itself. In the Chief Justice’s 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 be a basic feature of the structure of the Westminster type Constitutions adopted by Commonwealth Caribbean countries upon independence (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.

But what about the approval of the legislation by a special majority of the National Assembly? Was this to count for nothing? In the Chief Justice’s view, s.69 was a mere ‘manner and form’ requirement, no more than a ‘procedural handbook’[101], and was certainly not determinative of the constitutionality of legislation enacted by Parliament. Quite apart from the formal procedures laid down by s.69, any prospective amendment of the Constitution had to conform to the Constitution’s normative requirements as captured by section 68, which provides that all laws enacted by Parliament must be ‘subject to the Constitution’[105] – [107]. Any other view would entail subordinating the supremacy of the constitution in favour of parliamentary supremacy, for once the required majority for an amendment is obtained then absolutely no constitutional provision would be beyond alteration or revocation [120].

Following the judgment in Bowen, the Government amended clause 2 of the Sixth Amendment to provide that nothing in the amended s. 17 would affect the rights of the owner of any private land beneath which any petroleum deposits are located to receive royalties from the Government (For an account of the fall out from the ‘Bowen’ litigation see Prime Minister Belize v Vellos [2010] UKPC 7).  As we shall see, however, this did not mean that the Government was prepared to accept the limitations placed on the Belizean Parliament’s law-making powers by the Supreme Court in Bowen.

In the second case, British Caribbean Bank Ltd v AG Belize Claim No. 597 of 2011, the applicant had originally challenged the constitutionality of the Belize Telecommunications (Amendment) Act 2009 (TCA 2009), the purpose of which had been to enable the Government compulsorily to 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 s.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 applicant’s property within a reasonable time.

In response to the Court of Appeal’s judgment the Government secured the enactment of the Belize Telecommunications (Amendment) Act 2011 (TCA 2011), which sought to address some of the problems with the TCA 2009 that had been identified by the Court of Appeal.  At the same time, and in order to put the renationalisation of the telecommunications industry beyond doubt, the Government also secured the enactment of the Belize Constitution (Eighth) Amendment Act 2011 (the Eighth Amendment). The Eighth Amendment not only sought to disapply the ‘supreme law’ clause of the Constitution to ‘a law to alter any of the provisions of this Constitution which is passed by the National Assembly in conformity with s.69 of the Constitution,’ but also expressly declared that ‘the provisions of [s.69] are all-inclusive and exhaustive and there is no other limitation, whether substantive or procedural, on the power of the National Assembly to alter this Constitution.’ As the Prime Minister frankly admitted, this was in direct response to the judgment of the Supreme Court in Bowen (See A Fiadjoe, ‘Legal Opinion on the Ninth Amendment Bill of Belize)Additionally, the Eighth Amendment added a new Part XIII to the Constitution, the effect of which was, firstly, to define the meaning of ‘public utilities;’ secondly, to vest majority ownership and control of all public utility providers in the Government; and, thirdly, by s.145(1) and (2), to declare that the Government’s acquisition of such public utilities was duly carried out for a public purpose.

A challenge to the constitutionality of the Eight Amendment was, however, upheld by the Supreme Court, which concurred with the judgment of Chief Justice Conteh in Bowen in concluding that the National Assembly is not legally authorised to make any amendment to the Constitution that would remove or destroy any of the basic structure of the Constitution of Belize [45]. Since the cumulative effect of the Eighth Amendment was to preclude the Court from determining whether the arbitrary deprivation of property by the Government was for a public purpose, the Eighth Amendment offended the principle of the separation of powers and the basic structure doctrine of the Constitution. To this extent the amendments to the Constitution were unlawful, null and void.

Though the basic structure doctrine has now been prayed in aid by the Belize Supreme Court on two occasions, it has not yet been endorsed by any higher court in the region; an appeal to the Caribbean Court of Justice against the Court of Appeal’s refusal to award consequential relief to the applicants following its original judgment in British Caribbean Bank Ltd v Belize having been stayed pending the challenge to the TCA 2011. It is, as a consequence, difficult to predict whether the basic structure doctrine is likely to be taken up by other courts in the region. Potentially, at least, it is a very interesting jurisprudential development in a region where governments seem to be increasingly willing to amend their country’s constitution with a view to depriving their courts of the right to review the constitutionality of actions of the executive when implementing the death penalty even if they violate the right not to be subject to torture or inhuman or degrading treatment or punishment and to preserve legislation which criminalises homosexuality (See, for example, Jamaican Charter of Fundamental Rights and Freedoms).

However, the basic structure doctrine represents a significant departure from over a century’s worth of jurisprudence on the powers of legislatures, like those of the Commonwealth Caribbean, which are empowered by their constitution: to ‘make laws for the peace, order and good government ’ of their country. The plenary nature of the power thus granted was recognized by the JCPC in a series of historic decisions at the close of the nineteenth century, such as Riel v The Queen (1885) 10 AppCas 675, in which Lord Halsbury rejected the contention that a statute was invalid if a court concluded that it was not calculated as a matter of fact and policy to secure ‘peace, order and good government.’ The basic structure doctrine is also very difficult to reconcile with the following dicta of Lord Diplock in Hinds:

Where…a constitution on the Westminster model represents the final step in the attainment of full independence by the peoples of a former colony or protectorate, the Constitution provides machinery whereby any its provisions, whether relating to fundamental rights and freedoms, or to the stratum of government and the allocation to its various organs of legislative, executive or judicial powers, may be altered by those peoples through their elected representatives in the Parliament acting by specific majorities, which is generally all that is required (at 214).

Judicial attitudes towards constitutional review of legislation have, however, changed dramatically since Lord Diplock’s judgment in Hinds. In addition to the further development of the basic structure doctrine by the Indian Supreme Court, the South African Constitutional Court has asserted its power to review the content of constitutional amendments if they violated certain implied limits, (Premier of Kwazuly Natal v President of South Africa CCT 36/95) and the High Court of Australia has recognized that its Parliament’s law-making powers are subject to limitations which may be implied ‘in and from the text of the Constitution’(Nationwide News Pty Ltd v Willis (1992) 108 ALR 681 at 701-722). Even in Britain, in the absence of a codified constitution, a theory of common law constitutionalism has emerged, which is reflected in the dicta of a number of their Lordships in the case of Jackson v Attorney General [2005] UKHL 56 to the effect that the British Parliament, which has traditionally been regarded as legislatively supreme, may be subject to certain implied constitutional limits. As Lord Steyn remarked:

In exceptional circumstances involving an attempt to abolish judicial review or the ordinary role of the courts, the House of Lords may have to consider whether this is a constitutional fundamental which even a sovereign Parliament cannot abolish [102].

It is, of course, one thing to pronounce hypothetically on the possibility of striking down legislation which infringes an implied constitutional limit: it is quite another to do as the Supreme Court of Belize has done and to strike down legislation to amend the constitution which has the support of no less than three quarters of the National Assembly. The challenge to representative democracy by the Supreme Court in these two cases could not be clearer. It is worthwhile noting, however, that, notwithstanding the radical nature of the Supreme Court’s decision in both cases the Government has not sought to appeal against either judgment and may be assumed, therefore, to have accepted ultimately that there are, indeed, some implied limits on the legislature’s power to amend the Constitution, irrespective of the support for the legislation that the Government may have been able to garner in Parliament.

Derek O’Brien is Principal Lecturer, Law School, Oxford Brookes University.

Suggested citation: D. O’Brien, ‘The Basic Structure Doctrine and the Courts of the Commonwealth Caribbean’  UK Const. L. Blog (28th May 2013) (available at http://ukconstitutionallaw.org).

4 comments on “Derek O’Brien: The Basic Structure Doctrine and the Courts of the Commonwealth Caribbean

  1. Isaam Haris
    May 28, 2013

    It is becoming increasingly common for courts to rely on the constitution’s preamble to discover “basic inviolable features”. The Pakistani SC has been willing to go down the same road with reference to the Objectives Resolution. The danger with these preambles is that they contain very strong/non-minimalist principles which, if taken to be guiding forces, can give courts more strike-down/review powers than may be desirable or sustainable. On acceptance of implied limits, you can also add Italy (where the CC has expressly endorsed the “implied limits” theory) and Israel (where the SC has declared the Jewish and democratic nature of the state as eternal) to the list. Perhaps the tacit acceptance of implied limits by the Belize government and by other jurisdictions reveals something about their political history that is more sacred to them than continuing to comply with principles of representative democracy. Arbitrary deprivation of property was as much an issue in India at the time of Kesavananda as it seems to be now in Belize. But this is a very interesting development in terms of how the basic structure doctrine is slowly being relied upon by courts all over the world from South Asia, Europe, Latin America (to some extent) and now the Caribbean.

    • Dr.Sanjay Jain
      June 1, 2013

      Hi Derek
      I am Dr.Sanjay Jain. I teach Constitutional Law in ILS Law College, Pune, India. I take interest in following Basic Structure Doctrine. I have also Co-edited a book,”Basic Structure Constitutionalism; Revisiting Kesavananda Bharti” published by Eastern Law-book Company(EBC), Lucknow, India. I just read your article on UK Constitutional Law Blog. It is interesting. However I am unable to download 2 cases sited by you { “British Caribbean Bank Ltd v AG Belize Claim No. 597 of 2011″ and ” Bowen v Attorney General BZ 2009 SC 2}. I would be grateful to you if you could mail those cases to me.

  2. Eamon Courtenay
    December 29, 2013

    I am one of the attorneys involved in both the Bowen and BCB cases. By way of information, the Court of Appeal is expected to hand down its decision in the BCB appeal by the Government very early in the New year – January 2014 I expect.

    When teasing out applicable principles and considering the limits of legislative power in constitutional democracies (with written constitutions) we should be careful when relying on cases which do not consider whether an amendment to a constitution is valid. Take the case of Hinds for example, the very important principle of the doctrine of the separation of powers pronounced by the JCPC has been relied upon in many cases in many jurisdictions. The question one should consider is whether the principles, or result of the case, would have been appreciably different if the JCPC was considering Acts that amended the Jamaican Constitution rather than ordinary Acts of the Jamaican parliament. Are the principles in Hinds applicable to constitutional amendments or only to ordinary Acts?

    Is there ANY limitation other than the ‘manner and form requirements’ stated in the Constitution, on the power of parliament to amend a written constitution? Specifically, can the Legislature, by a valid constitutional amendment, abolish the Judiciary?

    If the answer to these questions is that there is no limitation, then it begs the question what is there to prohibit a popularly elected government with a huge parliamentary majority from passing, in accordance with the proper constitutional procedures, a constitutional amendment establishing itself as a Government in perpetuity.

    it seems to me that the choices are: a) the implied limitations such as the separation of powers doctrine, the rule of law and the basic structure doctrine; b) recourse to ‘people’s power’ – civil disobedience to remove the government. One cannot seriously argue for the latter option. Are we not driven back to an independent and impartial judiciary that is empowered to find the unwritten limits of legislative power?

  3. Pingback: Isaam Bin Haris: Judicial Review of Constitutional Amendments – Pakistan’s Uneasy Subscription to the Basic Structure Doctrine | UK Constitutional Law Association

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