Conclusion
Several conclusions emerge on the basis of the case studies discussed above and throughout this volume. The first is that studying the constitutional politics surrounding unamendability greatly enriches our understanding of the meaning, interpretation, and effects of constitutional eternity clauses and unconstitutional constitutional amendment doctrines.
While this may at first glance seem obvious, it serves as a useful corrective to overly doctrinal readings of unamendability. It also serves as a warning against overly formalistic understandings, especially when it comes to textual eternity clauses. As the examples discussed here have shown, the text will only ever be one part of the story. It must be complemented by a contextual appreciation of the political bargains preceding and influencing constitution-making, as well as of the constitutional and political tugs of war that will ensue, including centred around unamendable provisions. Nepal's example is revealing here. The 2015 Nepalese Constitution and its eternity clause are fully understood only when looking back at the protracted process of constitutionmaking amidst complex patterns of interplay between constitutional nationalism and legal exclusion.Moreover and relatedly, my analysis has also pointed to the need for holistic interpretation when assessing constitutional unamendability. Studying eternity clauses in isolation, not just of the broader constitutional and political context but also of the broader constitutional architecture, risks obscuring subtle details about how an eternity clause or unamendability doctrine interacts with other elements of the constitutional set-up. The example of Thailand is a case in point here. Its entrenchment of the monarchy only reveals its true meaning when the interconnectedness of the monarch, military, and courts is appreciated. This institutional edifice must be contextualised further by understanding the specificities of “Thai-style democracy” and its various iterations.
Finally, I would emphasise the need to adopt a longitudinal view when reconstructing the evolution of unconstitutional constitutional amendment doctrines.
Contrary to the lawyerly impulse to focus on case-by-case developments, a longer term view will be conducive to a richer but also a more realistic assessment of theEternity clauses as tools 273 fate of eternity clauses and unamendability doctrines. As the Indian example shows with regard to the basic structure doctrine, understandings of unamendability will not necessarily develop linearly. We are increasingly seeing unconstitutional constitutional amendment doctrines deployed not in exceptional circumstances threatening the very core of democratic constitutionalism, but also as mechanisms ofjudicial turf protection and self-dealing. These developments may not negate the potential usefulness of unamendability as a stopgap against the erosion of democratic constitutionalism; they do demand heightened awareness of the delicate institutional dynamics that determine how courts operationalise unamendability over time.
My intention in this chapter is to issue a call for more caution about unre- flectively and uncritically endorsing unamendability as a tool that reinforces democratic constitutionalism, especially at a time of ever-growing attacks on democracy. While eternity clauses and doctrines of implicit unamendability may serve useful defensive roles, we must also not look away from their “dark side” - whether in the form of textually enshrining constitutional exclusion and preventing democratic advances, or as a tool of unrestrained judicial self-empowerment. A thorough grounding in constitutional politics as advocated throughout this volume performs precisely this sobering function.
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