The report ("Ending elected presidency may not work"; Sept 11) cited an article by two lawyers on the basic structure doctrine. The authors posited a scenario whereby a move to abolish the elected presidency may not work even if it is passed by Parliament or supported by a referendum, as this may run afoul of the basic structure of the Constitution.
As the authors have pointed out, the basic structure is intrinsic to the very nature of the Constitution, and serves to place limits on state power. The separation of powers is in turn fundamental to achieving this purpose.
This is based on the notion that absolute power corrupts, and to prevent abuse, power should not be concentrated in the hands of a select few.
The tripartite system of dividing power between the executive, the legislature and the judiciary aims to provide a system of checks and balances.
The precise distribution and allocation of power may, however, be altered over time without necessarily violating the separation of powers. This may depend on the changing needs of society or will of the people. In fact, an overly rigid Constitution would not be desirable if its institutions were outdated or ineffectively structured.
Being a democratic society, our Constitution should also adequately reflect the will of the people.
While the basic structure doctrine has not received comprehensive judicial pronouncement in recent times, it is clear that elements such as the separation of powers, democratic principles and the idea that all discretionary power is subject to legal limits are essential to the Constitution.
The Constitution is, after all, not a written document for its own sake. It is an instrument meant to serve and protect the interests of the people.
Dierdre Grace Morgan (Ms)
This article was first published on Sep 23, 2014.
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