HARELA MUSINGUZI DANIEL. 2021-B411-11083.

CONSTITUTIONAL LAW
COURSEWORK.
UGANDA MARTY’S UNIVERSITY NKOZI.

QUESTION.

” The Basic Structure Doctrine supports rather than subverts Kelsen’s Pure Theory of
Law.” Critically discuss the above opinion.

THE BASIC STRUCTURE DOCTRINE.

The basic structure doctrine is a common law legal doctrine that the constitution of a sovereign
state has certain characteristics that cannot be erased by its legislature. The doctrine is
recognized in Uganda but mostly in Bangladesh. It was developed by the Supreme Court of
India in a series of constitutional law cases in the 1960s and 1970s that was a peak
in Kesavananda Bharati v. State of Kerala, where the doctrine was formally adopted.
Bangladesh is perhaps the only legal system in the world that recognizes this doctrine with an
expressed, written, and rigid constitutional manner through article 7B of its Constitution.

In the Kesavananda case, Justice Hans Raj Khanna showed that the Constitution of India has
certain basic features that cannot be altered or destroyed through amendments by the Parliament
of India. For example, the fundamental rights guaranteed to individuals by the constitution. The
doctrine thus forms the basis of the power of the Supreme Court of India to review and strike
down constitutional amendments and acts enacted by the Parliament that 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
Constitution to be a basic feature is determined by the Court. The Supreme Court's initial
position on constitutional amendments had been that any part of the Constitution was amendable
and that the Parliament might, by passing a Constitution Amendment Act in compliance with the
requirements of Article 368 (of the Indian constitution), amend any provision of the Constitution,
including the Fundamental Rights and Article 368 (of the Indian constitution).

The Golaknath V. State of Punjab 1967 AIR 1643; 1967 SCR (2) 762 case talked about
several issues that were raised, however, the most important issue was whether the parliament of
India had the vested power to amend article 368 (of the Indian constitution). A revised decision
of the supreme court in the earlier cases. Where it was held that Fundamental Rights included in
Part III of the Constitution are given a "transcendental position" and are beyond the reach of
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Parliament. This was adapted from an article published by a German scholar Professor Dietrich
Conrad, formerly Head of the Law Department, South Asia Institute of the University of
Heidelberg, Germany. The article is called Behind the basic structure doctrine he approved
that "Any amending body organized within the statutory scheme, howsoever verbally unlimited
its power, cannot by its very structure change the fundamental pillars supporting its
constitutional authority." This was concluded after Professor Dietrich Conrad attached questions
like;

i) Could a constitutional amendment abolish Article 21(of the Indian constitution), to

the effect that forthwith a person could be deprived of his life or personal liberty
without authorization by law?
ii) Could the ruling party if it sees its majority shrinking, amend Article 368(of the
Indian constitution) to the effect that the amending power rests with the President
acting on the advice of the Prime Minister?
iii) Could the amending power be used to abolish the Constitution and reintroduce, let us
say, the rule of a Moghul emperor or the Crown of England?

These questions were made in 1973, as in 1968, the Bench was split evenly. Six of the Justices
including the Chief Justice were of the view that Article 368 does not enable Parliament to
abrogate or take away fundamental rights, including the property right because there are in
Article 368 (of the Indian constitution) inherent or implied limitations in that it does not
empower Parliament to alter or destroy the basic structure of the Constitution. Six other Justices
held that there were no limitations to the power of constitutional amendment beyond those which
are contained in Article 368 (of the Indian constitution), and Parliament was competent to amend
any provision of the Constitution but it was the judgment of Justice Khanna that tilted the
balance. He rejected the theory of implied limitations.

This is applicable in Uganda as to chapter 4 of the constitution of Uganda which has the human
right and freedoms that are not amendable by the legislature, plus the independence of the
judiciary whereby, the Judiciary's mandate is found in Article 126 (1) of the Constitution of the
Republic of Uganda: "Judicial Power is derived from the people and shall be exercised by the
Courts established under this Constitution in the name of the people and in conformity with the
law and with the values, norms and aspirations of the people.
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KELSEN’S PURE THEORY OF LAW

Its proponents Hans Kelsen 1881-1973, wished to free the law from the metaphysical mist with
which it had been covered at all times by the speculations on justice. He wanted to lay down
certain standards which men ought to follow.

To him, the legal theory is based on the idea of a grundnorm (the mother to other laws), a
hypothetical norm on which an entire legal system us-based. The basic norm is chosen based on
its efficacy, meaning that the whole legal order must rest on the assumption that it is by and large
productive, hence that people must conduct themselves in compliance with the basic norm.

Every norm in a legal system depends on another norm for its validity. The validity of the rule
depends upon its relationship with another norm and it is those other norms in a hierarchy that
gives validity. Kelsen, therefore, concluded that no matter with what proposition of law one
begins in every legal order, there is a hierarchy of norms or aughts which is traceable to some
initial or fundamental ought on which the validity of all other norms depends, which is the
Grundnorm, the fundamental norm.

He argued that a Grundnorm need not be the same in every legal order but there must be a
Grundnorm. This could be derived from a written or unwritten constitution, from a monarch, or
even a dictator. The Grundnorm is not the constitution but it is a presupposition or assumption
demanded by the theory that an existing constitutional order ought to be obeyed. Therefore, the
Grundnorm is always adapted to the existing state of affairs.

He then concluded that, when a Grundnorm ceases to command minimum support, it ceases to
be the basis upon which the legal or constitutional order is constructed. Therefore, any other
proposition which obtains support can replace it. When such a change in a legal or social order
takes place, it is said to amount to a revolution in law. It does not necessarily mean a social or
political revolution.

From the above, the Constitution of Uganda creates the under Article 77 legislature which makes
the constitution the grundnorm and the legislature a norm which formulates other norms in
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Uganda, of which those other norms formulated by the legislature get their validity from the
Constitution which is the grundnorm.

Why Kelsen’s Pure theory of law, rather supports the basic structure because Keslen talks
about Grudnnorm that will cease to be the basis upon which the legal or constitutional order is
constructed if it fails to be the root control of the minimum commands. This was the basic point
of view by the German scholar, Professor Dietrich Conrad, when he raised the question from
the Article ‘Behind the basic structure doctrine that led to the judgment of one of the judges,
Justice Khanna in the Golaknath V. State of Punjab 1967 AIR 1643; 1967 SCR (2) 762 case
where he noted that ‘Any amending body organized within the statutory scheme, howsoever
verbally unlimited its power, cannot by its very structure change the fundamental pillars
supporting its constitutional authority’ hence deprivation of the legislature from amending some
parts of the Constitution. For example, Article 2 of the Constitution cannot be amended by the
legislature, because the Constitution is the one that establishes the legislature.

However, the basic structure doctrine these are powers or provisions which make the
Constitution not amended able by some parts in the such as chapter 4 of the Constitution of
Uganda. This means that other apart of the Constitution are amendable, which subverts
Kelsen’s pure theory of law that talks about the grundnorm the “makers of laws” or other norms,
which can affect other laws if the grundnorm is tempered with and it is not successful. Meaning
that the Constitution should never be amended if it’s believed to be the supreme law, but should
naturally stay as it was made never to change. If it is tempted to be changed hence the success of
changing then the whole structure of it will have to change (a revolution in law).

As I finally submit, the two systems of constitutionalism hence Basic Structure Doctrine and
Kelsen’s Pure Theory of Law, both rather support one another concurrently than distinguish
themselves in Constitutional formation.