Background and aims
Constitutional amendments are central to the study of comparative constitutionalism. Amendment rules and processes, as well as their effects on the constitutional order, have been the subject of much scholarship.
Of particular interest to constitutional scholars in recent years are the theory and practice of unconstitutional constitutional amendments (UCA).[1] The notion of UCA has diffused globally from its political foundations in France and the United States, to its doctrinal origins in Germany, to its practical application across the globe, including in Argentina, Austria, Greece, Hungary, Portugal, South Africa, South Korea, Switzerland, and Tanzania.[2]Constitutions may place both explicit and implicit limits on amendments. Article 79(3) of the German Constitution, for instance, makes the following provisions unamendable: the democracy principle (provided in Article 20), the federal structure, and the principle of human dignity (provided in Article 1).[3] Such explicit limitations in the constitutional text are sometimes referred to as eternity clauses - they ensure that fundamental principles endure for as long as the constitution itself. More controversial, through increasingly common, are implicit limits on constitutional amendments. Implied limitations are usually declared by courts. Through a heightened form of judicial review, judges may find that constitutional amendments violate core constitutional principles such as the separation of powers or judicial independence. This is what transpired in the Indian Supreme Court's landmark Kesavananda judgment (1973), which held that amendments could not violate the Constitution's “basic structure” and inspired many other apex and constitutional courts to follow suit. Indeed, courts around the world have held certain constitutional amendments as unconstitutional on the grounds that the impugned amendments altered fundamental aspects of the existing constitution.[4]
As a result of the global spread of UCA, there is a great deal of comparative constitutional scholarship in this area.
The scholarship generally covers one or more of the following dimensions: theory, constitutional design, and judicial review. At a theoretical level, UCA, particularly in its implicit form, poses a conundrum for the classic distinction between constituent and constituent power. The distinction was first articulated by the Enlightenment French theorist Emmanuel Joseph Sieyes, who distinguished between an all-powerful constituent power that creates the constitution and a lesser, constituted power, which is created by, and operates under, the constitution.[5] Building on this insight more than one hundred years later, the German theorist Carl Schmitt argued that a constitution's core identity - representing the fundamental decisions of the constituent power - could not be destroyed or removed by amendments.[6]Constitutional amendments do not fit neatly in this framework. On one hand, they may amend the very rules and processes under which the constituted power operates. Constitutional amendments may, for instance, alter executive term limits, legislative voting roles, or judicial appointment processes. On the other hand, the amendment power is often vested in one or more branches of the constituted power - usually the legislature and/or executive - and so it would be odd to view it as on par with the constituent power, which is often (though misleadingly) thought to reside in “the people.”[7] So, paradoxically, the amendment power appears be neither part of the constituent power, nor part of the constituted power. One way around this paradox is to argue, as Yaniv Roznai has, that the amendment power is “sui-generis,” a “secondary constituent power” that sits between the two poles.[8] For Roznai, the amendment power operates in a fiduciary arrangement with the constituent power, serving as its “trustee” that is subject to procedural and substantive limits.[9] Thus, an amendment may justifiably be considered unconstitutional if it violates these fiduciary terms.
Roznai’s influential account has spawned several responses, both supportive and critical.[10]Another thorny theoretical issue that implicates UCA is how to deal both descriptively and normatively with constitutional amendments that are amendments in name only. These are amendments that fundamentally reshape or shift the existing constitutional order. Richard Albert refers to such amendments as constitutional dismemberments. They are aimed not at correcting or clarifying an existing constitution, but instead seek “deliberately to disassemble one or more of a constitution’s elemental parts.”[11] While Albert's terminology and application is value neutral - applying to both progressive changes like the Civil War Amendments in the United States and regressive amendments like the Public Spending Cap Amendment in Brazil[12] - it helpfully theorizes and gives a name to especially consequential amendments, even if those amendments are formally treated like ordinary amendments. The normative implications that flow from an amendment being treated as a dismemberment are substantial. For if an amendment has the effect of creating a new constitutional settlement, the constitutionality of future amendments should be measured against that new settlement, and not the original (or previous) constitutional order.[13]
The second dimension of scholarship on constitutional amendments and UCA focuses on constitutional design. Much recent discussion has been on “tiered” or “multi-track” amendment rules, in which constitutional designers vary the requirements for formal amendment based on the type of provision at issue.[14] For instance, while routine changes are subject to less rigorous rules, changes to fundamental provisions or values are placed on a higher tier and must pass more onerous requirements. Such differentiation among constitutional provisions serves an important expressive function,[15] as core constitutional values are marked as such by being placed in a higher amendment tier.
But tiering also serves a practical purpose, particularly in guarding against abusive constitutionalism.[16] As Rosalind Dixon and David Landau put it,[T]iering can combine the best of... [rigid and flexible] constitutionalism. Because most provisions can be changed easily, the constitution can be updated as needs arise. At the same time, enhanced protection of a core set of provisions may help defend against particularly destabilizing forms of constitutional change.[17]
Some parts of a constitution, however, are explicitly immune from constitutional amendment. Such eternity clauses represent the highest level on a tiered or multi-track design. As they cannot be amended, these provisions have especial symbolic or expressive value.[18] They also may be the product of hard-won political bargains - certain parties may not agree to ratify or support a constitution unless their interests are explicitly entrenched beyond the scope of amendment. Article V of the US Constitution, which insulated certain slavery-related provisions from amendment until a certain date and further made it practically impossible to deprive states of equal representation in the Senate, fits this description.[19] As Silvia Suteu argues, though, in post-conflict or post-authoritarian situations, such political compromises may forestall the development of liberal constitutionalism in the long run and may entrench exclusionary majoritarianism at the expense of minority interests.[20]
The third dimension of scholarship in this area concerns UCA as a judicial doctrine. As Roznai has shown, implicit unamendability, as expressed in basic structure or UCA doctrines, has spread from the Indian Supreme Court to courts around the world including in Taiwan, Bangladesh, Kenya, Belize, and Colombia.[21] At a normative level, scholars generally cabin their support for judicial interventions on UCA grounds to situations in which the amendment at issue grossly infringes upon core constitutional provisions.
Thus, courts should only strike down amendments that are “manifestly unreasonable”[22] or constitute a “disproportionate violation.”[23] Within these limits, courts can play a useful countermajoritarian role in checking the excesses of elected leaders. But when courts are responsible for determining the content and scope of UCA enforcement, rule of law and democracy-related concerns inevitably arise. As Richard Albert put it,[I]f the Court takes the broadest reading of democracy, an unamendable rule protecting “democracy” risks swallowing up the entire constitution, bringing all constitutional amendments within the purview of a court's power of judicial review and accordingly its power to invalidate any constitutional amendment.[24]
Such broad policing of the amendment power may bring instability to the constitutional system or turn a democracy into a “juristocracy.”[25]
At a contextual level, the doctrine has been defended as a useful tool to protect against abusive constitutional amendments, particularly in new or fragile democracies, but it has also been criticized for aggrandizing judicial power beyond permissible limits. David Landau has defended the use of UCA in Colombia, inter alia^ to prevent President Uribe from seeking a third term in office, which he was able to do given the low bar to constitutional amendments in that country.[26] By contrast, the Indian Supreme Court's judgment in the Fourth Judges Case invalidating the National Judicial Appointments Commission (NJAC) has been heavily criticized.[27] The Court struck down a constitutional amendment and related legislation that would have vested the judicial appointment power in a multimember, multi-institutional commission.[28] As a result, the Court entrenched the deeply flawed and corrupt “collegium” system of judicial appointments, in which the appointment power is vested in a group of judges.
While these debates are important, and we seek to engage with them, this volume aims to expand academic research on unconstitutional constitutional amendments in two ways: substantive and jurisdictional.
First, while existing scholarship has focused on the three dimensions discussed above, this volume explores a fourth dimension: constitutional politics. Politics refers to “the control, allocation, use of important resources and the values and ideas underlying these activities.”[29] Constitutional politics, therefore, involves the control, allocation, use of public power, and the fundamental values and ideas underlying these activities.Second, this volume focuses on Asian jurisdictions that have been understudied in the existing scholarship on unconstitutional constitutional amendments. To be sure, the basic structure doctrine in India has been extensively studied.[30] In addition, there are several studies on this topic in other Asian jurisdictions, such as Taiwan[31] and Malaysia.[32] However, the existing scholarship has focused on individual Asian jurisdictions and has largely considered issues of design or judicial review of constitutional unamendability. Several other Asian jurisdictions such as China, Japan, Thailand, and Vietnam have been largely overlooked in the scholarship on unconstitutional constitutional amendments. Moreover, there are no book-length treatments of which we are aware on unconstitutional constitutional amendments in Asia generally and on their politics particularly. This volume seeks to fill this scholarly gap by investigating the political aspects of constitutional unamendability in a range of Asian jurisdictions from a comparative perspective.
The politics of unconstitutional constitutional amendment involves the following aspects: diverse political regimes including democratic, socialist, and hybrid; diverse political activities including political discourse and mobilization; diverse forums including legislative, judicial, and popular; diverse social and political actors including judges, politicians, lawyers, scholars, activists, political parties, and social movement actors; and the diverse triggers, including formal amendments, informal amendments, amendment proposals, and constitutional replacements.
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