9  Doctrines of Constitutional Law

What are “Doctrines?

It is a principle or belief or set of beliefs that are well established and backed by logical. In constitutional law, Doctrines holds a very important role even when the doctrines are not mentioned in the constitutional instrument. Often the interpretation of a constitution refers back to the original intent of the creates and analyses what they might have thought during the creation of that constitution and that often helps the people to understand the doctrines behind a constitution.

The doctrine of Basic Structure

In every constitution there are some fundamental elements that are considered as a main component of the constitution and if those particular elements are changed or violated than the main purpose of the constitution are hampered, therefore, in most of the constitution there are provisions that are preserved not to amend. These fundamental elements that are specially protected by the constitution itself are considered as the basic structure of the constitution.

In Bangladesh by the fifteenth amendment Article 7A and 7B were inserted in the Constitution in a bid to end takeover of power through extra-constitutional means. Specially Article 7B of Bangladesh constitution referred to Article 142, Part I, II subject to provisions of Part IXA (Emergency provisions) and Part III and other provisions of articles relating to the basic structures of constitution including article 150 of part XI shall not be amendable by way of insertion, modification, substitution, repeal or by any other means.

It is often accepted that the Doctrine of Basic Structure of Bangladesh Constitution was adopted from the Indian constitution and their remarkable judgments. To have a complete Idea we are going to put a shadow on some renowned case laws of the Indian Constitution.

Case: Golaknath v. State Of Punjab
Outcome: parliament has no right to amend the fundamental right [on the 24th Amendment their constitution] that was, “With the executive and constitutional power government can amend any provision of the constitution”

That was challenged by a subsequent case:   Kasabanka Bharati vs State of Kerala  Outcome: Parliament can amend any provision including fundamental rights of the constitution but parliament cannot amend the provisions of the constitution which strikes the basic structure.

After that judgment another amendment was issued, (Amendment 39) Which articulated that “Court shall not able to raise any question in relation to any election of President, Vice- Precedent, Prime Minister, Speaker etc.”

That was followed by another case; Indira Nehru Vs Raj Narayan in its judgment the court said that “The amendment was a violation of the basic structure of The Indian constitution and cancelled the 39th Amendment of Indian Constitution.

Then Comes the 42nd Amendment (1976) of Indian constitution relating the same issue, it should be mentioned that that amendment took place during an emergency period which basically said “No constitutional amendment including fundamental rights can be called in question in court” but the game is not over yet.

Another case followed that amendment, Case: Minerva mills ltd. Vs. Union of India and that case declared the previous (42) amendment fully unconstitutional with reference back to Kasabanka Bharati vs State of Kerala.

In the 8th amendment, the legislative among other changes changed Article 100 of Bangladesh constitution by which it decentralized the judiciary by setting up six permanent benches of the High Court Division outside Dhaka. That amendment was challenged by Mr Anwar Hussain by a Writ petition (Case; Anwar Hossain Vs Bangladesh) which finally reached to the appellate division of Bangladesh Supreme Court and finally, the court recognized article 100 of the Bangladesh Constitution as part of the Basic Structure of the constitution so that cannot be amended.

Judicial Review Doctrine

This doctrine simply imposes that, any act done by executive or legislative can be reviewed by the judiciary and by this power judiciary can verify in any act by executive or parliament is conflicting with the constitution or not.

This doctrine has Established from the judicial decision in the landmark case of USA; Marbury v. Madison; in this case (Writ of Mandamus) state was a party thus the Justice referred to Article III, Section 2 of the [US]Constitution, which states in part that “the Supreme Court shall have original Jurisdiction” in “all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party,”   and by bringing that to notice court has Established it’s jurisdiction over the actions of Executives and other government bodies.

But this is not the first time that judiciary tried to limit the authoritarian action of executives, In 1610 England another similar case tried to approach in  very similar way, In the case Bonham [1610, England] decided by Sir Edward Coke, chief justice of England’s Court of Common Pleas, in which he asserted the supremacy of the common law in England, noting that the prerogatives of Parliament were derived from and circumscribed by precedent. He declared that “when an act of parliament is against common right or reason, or repugnant, or impossible to be performed, the common law will control it and adjudge such act to be void.” but that idea never took the stand because the justice was later removed or coke himself has abandoned the idea.

Now, modern constitutions often have similar articles or clause to maintain the balance of power among the government organs. The Supreme Court of Bangladesh has also vested similar power by The constitution of Bangladesh.

Article 7 of the Bangladesh constitution ensures the supremacy of the constitution thus any law that is conflicting with the constitution, especially with part III shall be void and government shall not make any new law inconsistent with that part. (Article 26) and The Judiciary using the conferred power by Article 102 (2) can take/provide any efficacious remedy if otherwise not satisfied by any other law to protect the Basic Structure of the constitution using its judicial wisdom.

The doctrine of Political question

The political question doctrine holds that some questions, in their nature, are fundamentally political, and not legal, and if a question is fundamentally political … then the court will refuse to hear that case. It will claim that it doesn’t have jurisdiction. And it will leave that question to some other aspect of the political process to settle out.

— John E. Finn, professor of government, 2006

When a case is presented before the court the court will decide if there is any legal question or not and whether it would be appreciated to try that case or not?

The political question doctrine stems from Chief Justice Marshall’s opinion in Marbury v. Madison. Even as he claimed the power to decide questions of law authoritatively for all three branches of government, Chief Justice Marshall recognized limitations on that power: The province of the court is, solely, to decide on the rights of individuals, not to inquire how the executive, or executive officers, perform duties in which they have a discretion. Questions in their nature political, or which are, by the constitution and laws, submitted to the executive, can never be made in this court.”

Apparently, Chief Justice Marshall assumed a sharp, stable distinction between issues of law that courts must resolve and political questions they must permit others to answer.

Doctrine of Efficacy

This doctrine was justified and came into effect by the observation of Chief Justice Monir (Pakistan; 1895–1979) while a case was brought before him; it was The STATE VS. DOSSO   Where the among the issues one of the most important ones was, “whether the writs which had been issued would they abet by a virtue of clause 2 of clause 7 of article 2 of The Laws Continuance Enforce Order 1958”; that was in a nut shall a new constitution that was illegally enacted by the martial authority of the time that.

To address the issue Justice Monir took the help of “The Pure Theory of Law” by Hans Kelson where Mr Kelson through his philosophical view and jurisprudence tried to find out what is the norms to be a law hand how that works or empowered, on one point he delivered that, every law has certain beginning and of them is validated by efficacy.

Justice Monir has expressed this with his own view; as, “When a constitution on legal order is disrupted by an abrupt political change, not within the contemplation of the constitution that disruption is another way called revolution; if that is unsuccessful the person would be charged with treason but if it is successful then the coup d’etat is a recognized method of international law of changing a constitution and that takes effect the validity of the law and would be judged not the reference to the old order but to the new order because the old order is ceased to exist ….  ”

So, a conclusion from these jurists can be drown as, where the chain of authority ends in an unconstitutional way, therefore requires new authority due to the ineffectiveness or vacant situation, thus a new authority of law can be started for the effectiveness of law and order.

This Doctrine of Efficacy often use to validate the martial law around the world, another tool of martial law is Doctrine of Necessity

Doctrine of Necessity

Where there is a certain situation where it is necessary to take strict action to control that situation by postponing the constitution or certain provisions of the constitution for a certain time is the doctrine of necessity.

A remarkable case on this doctrine is  Begum Nusrat Bhuttovs.Chief of Army Staff and Federation of Pakistan  General Mohammad Zia-ul-Haq’s martial law was validated by this case when he suspended the constitution and detain many political personal.

Two similar cases were observed in Bangladesh too. On 5th April 1979, the 5th Amendment was passed in the Parliament to validate certain actions and changes of the constitution of Bangladesh but later that was declared illegal by the Bangladesh Supreme Court in 2009.

Another case was brought on the 7th Amendment of Bangladesh Constitution that was designed to legalized the administration of the Martial law administrator of General Ershad for the actions and orders from 1982 to 1996. On 26th August 2010, The High Court Division declared that amendment illegal.  [See more here]

The doctrine of Severability /Eclipse

To understand it easily we can say the primary purpose of the Doctrine of Severability is to separate the invalid part of any Law or the constitution. The concept is adopted from the law of the contract where in any part of the contract becomes invalid for some reason but the others or most parts or the main subject of the contract is still valid then only that invalid part will cease to exist. Similarly, if any law come to existence and some part of it is contradictory with the fundamental part of the constitution then only that part would be void ab inition.

Article 26 of the Bangladesh Constitution directly impediment this Doctrine for the Part III (Fundamental Rights) of the Constitution.

Relieve case laws;

  • BHIKAJI NARAIN DHAKRAS V. STATE OF M.P ( AIR 1955 SC 781)
  • KHIHOTA HOLLOHAN V. ZACHITU ( AIR 1993 SC 412)
  • K GOPALAN V. STATE OF MADRAS ( AIR 1950 SC 27)

The doctrine of  Natural Justice

The Doctrine of Natural Justice is basically a technical terminology from Jurisprudence, what is means that justice should be fair not bias. It follows few principals of law.

  • audi alterem parton: No one should be contempt unheard; means the accused must have the right to defend and tell his / her part of the fact and the situation.
  • nemo iudex in causa sua: No one should be judged in his own case; means the person who is involved or have any interest in the case he/she must not have the power to determine the fate of the case because then there will be a change for baseness.

 

The doctrine of ultra vires

This two word, ultra and vires mean Access and Power accordingly, When a person does something that is beyond his jurisdiction shall be declared as ultra vires.

Ultra vires acts can be challenged by writ [under Article 102 of the Bangladesh Constitution], one of its forms is Public Interest Litigation (PIL); which is a litigation that is intended not for the benefit of one individual but for the benefit of a group of people, PIL can be placed before a court who has no interest on it.

PIL is properly explained in the case of S.P. Gupta Vs. Union of India in the judgement it was held that, “Where a legal injury or wrong has happened to a person or persons due to violation of constitutional rights or any other guaranteed rights and the aggrieved persons are not in a position to challenge the illegality due to poverty or helplessness or financial inability or can not got to court such act or cause of action can be brought before the court by any individual who feels that justice must be brought to these aggrieved persons”

PIL has successfully established in Bangladesh via the case, Dr. Mohiuddin Farooque and Another vs. Bangladesh, 1997  where similar observation like India were made in the case the court held that “Aggrieved party” means not the only person who is personally aggrieved but also one whose heart bleeds for his unfortunate fellow beings for wrong done by the government or local authority not fulfilling it’s constitutional or other statutory obligation.

The doctrine of Legitimate Expectation

This is a procedural doctrine, where any court or any other administrative authority provides any specific facility to any person and person on the same footing can legitimately expect that facility.

This doctrine is based on the doctrine of natural justice to protect a procedural or substantive interest when a public authority rescinds from a representation made to a person and keeps public authority from abusing their power.

A procedural legitimate expectation rests on the presumption that a public authority will follow a certain procedure in advance of a decision being taken, while a substantive legitimate expectation arises where an authority makes a lawful representation that an individual will receive or continue to receive some kind of substantive benefit. In determining a claim for an alleged breach of a legitimate expectation, a court will deliberate over three key considerations:

(1) whether a legitimate expectation has arisen;
(2) whether it would be unlawful for the authority to frustrate such an expectation; and
(3) if it is found that the authority has done so, what remedies are available to the aggrieved person.

Thes doctrines have various application in the constitutional law but it should be remembered there are always some new explanation and exception to deal with so these doctrines though stands with their own weight but these are not mandatorily followed in every constitution.

Rayhanul Islam

Legal activist & Practitioner - Editor - Researcher - Learner; A person who uses Logic & Law as his tool where psychology & Philosophy plays a role, he is on a quest to bring positive change to the legal sector of Bangladesh. He works as a lawyer and promotes legal knowledge and human right concept to the root level. He can be reached at: [email protected]

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