Explanatory theories

15.2.1 Crowin's higher law

The first theory that comes to mind is Corwin’s “higher law background” of American constitutional law.^[1027] According to this notion, there is a certain “com­mon right and reason” that guides the common law, which is, according to Corwin “something fundamental, something permanent; it is higher law.”^[1028] Of course, the idea of higher law can receive a local, and not necessarily universal, understanding and application.

And accordingly, in China, Ryan Mitchell tells us, there is the notion of guoti (literally “state form”) - a basic constitutional structure of the state. The polity's structure is theoretically unchangeable, in the sense that it reflects pre-legal social realities.^[1029] As Richard Kay noted, “The fundamental principles of [a] society... are not the products of the law. They determine what the law is.”^[1030] Arguably, in every society there can be pre-legal principles that may limit even formal consti­tutional law. Often, like in Germany, this supra-constitutional notion is constitu­tionalized within the document.^[1031] In Nepal, the Constitution of 2015 includes in Art. 274(1) an unamendable provision according to which no amendment may violate the constitution's basic structure by contravening Nepal's independ­ence, self-rule, territorial integrity, or the principle of popular sovereignty.^[1032] But very often the fundamental limits on positive law are not explicitly provided. In Vietnam, as we understand from Bui Ngoc Son, it was not a formal consti­tutional unamendability but rather a political or constructive unamendability,^[1033] according to which political limits to constitutional amendments protect “core norms of constitutional socialism” in a way that the core identity of the socialist regime remains unchanged even in the face a new constitution.^[1034] In Japan, the postwar Constitution of 1947 is based on three principles that form the pillars of the entire constitutional order: popular sovereignty, fundamental human rights, and pacifism, pillars that are so important for what the constitution means that - according to the dominant constitutional theory - they are beyond the formal amendment power.^[1035] The clearest manifestation is the aforementioned Indian BSD - the idea that certain inherent values and characteristics are so important to what the polity means that they are formally unchangeable.^[1036] And similarly, consider the Pakistani Supreme Court's approach, according to which any con­stitutional amendment must not violate the salient features or basic form of Pakistan's Constitution - the parliamentary form of government blended with Islamic provisions.^[1037]

All these examples are akin to Carl Schmitt's absolute substantive constitution, or Constantin Mortati's “Material Constitution.” For Schmitt,

the authority “to amend the constitution”...

According to Mortati, the formal constitution can change but only so far as the substantial form of the state and its ideological presuppositions are respected.^[1039] These two theories highly resemble the BSD that seeks to preserve the core con­stitutional identity even from formal amendments.

15.2.2 Ely's democracy and distrust

About 40 years ago, John Hart Ely published his influential Democracy and Distrust.^[1040] Briefly put, Ely presented a “participation-oriented, representation reinforcing”^[1041] theory of judicial review that focuses on failures in the political process. Particularly, Ely claimed that judicial review is required and legitimate in two circumstances in which the political process cannot be trusted: where incum­bent officials are blocking the channels of political change, and where the major­ity is systematically disadvantaging a minority because of hostility or prejudice.^[1042]

While Ely's theory was tailored to conditions in the United States, a political process theory of judicial review is extremely relevant and can be applied to con­stitutional law and courts around the world.^[1043] Consider Taiwan's Interpretation 499 concerning the extension ofthe term ofthe legislature.^[1044] In this Interpretation, the Fifth Amendment of 1999 was invalidated on procedural and substantive grounds.^[1045] According to the Taiwan Constitutional Court, an amendment pro­cess requires openness and transparency as the fundamental elements to facilitate democratic deliberation and rational communication. Yet, as the Court observed, the procedural requirements were not fulfilled by the National Assembly during the reading sessions of the fifth constitutional revision.

Why there? 279 process as a clear violation of the principle of openness and transparency. The Court further examined the substantive matter of the disputed constitutional amendments, holding that some contradicted constitutional provisions that are “integral to the essential nature of the Constitution.” By applying the theory, the Court struck down both proportional-appointment and term-extension clauses due to their inconsistency with the essential provisions of the Constitution - the principles of democratic republic, popular sovereignty, protection of rights, and separation of powers. As Yeh mentions, “by denying the necessity of extending the fixed term of the National Assembly, the Court considered such extension as the betrayal to the people, which should be deemed inconsistent with the princi­ple of popular sovereignty.”^[1046] Yeh notes that “As the monopolistic institution to approve constitutional amendments, the National Assembly abused its power for ‘rent-seeking’ tradeoffs to gain its own political interests.”^[1047]

One can rather easily apply Ely’s theory in this case. The paradox at the heart of Interpretation 499, Yeh writes, is “whether the self-interested National Assembly would be willing to reduce its own political interests by exercising its monopolistic amendment power.”^[1048] So, the court faced a “discredited National Assembly that seeks to expand powers and collect political gains in every round of constitutional revision.”^[1049] There was public dissatisfaction that “arose as the clear reflection of distrust in the politics of constitutional amendment.”^[1050] Democracy and distrust were at the basis of this judicial decision that was aimed at correcting failures in the political process.

It is no exaggeration to say that the hard work of at least three generations brought an end to the Chinese political tradition of lifelong tenure. The Interpretation set a milestone marking Taiwan’s progress towards democra- tisation and constitutionalisation, because no politician in this country dares to extend his or her term of office from that point onward.^[1051]

So, in many aspects, the judicial review of constitutional amendments can assist in protecting democracy.^[1052]

Or consider Thailand, as Khemthong Tonsakulrungruang elaborates in his chapter. In its judgment, the Constitutional Court was warning that, despite the principle of a rule by majority, democracy forbade the majority from abusing its superior status to harass the minority, turning into the tyranny of majority which calls for judicial intervention.^[1053] Further, the Court held that “power must be exercised with righteousness, independence, and honesty, for the collective ben­efit of all Thais, without conflict of interest, abuse of power, or total monopoly of politics,” and that “a political body is not allowed to abuse any law to support its unduly gain.”^[1054] While the application of Ely's theory to the Thai example seems inadequate, as the court was preventing the legislature from becoming a more democratic body, these judicial statements during a substantive judicial review of constitutional amendments allude to the notion that courts should intervene when there is a failure in the political process in the sense of tyranny of a minority or abuse of political authority.

Finally, judicial intervention to prevent political process abuse can also be seen in Nepal, where under the 2007 Interim Constitution, the Supreme Court limited the ability of the Constituent Assembly to adopt amendments that would extend its own term.^[1055] When the Supreme Court issued, in 2011, an order according to which: “if the Constituent Assembly was to fail to promulgate the new constitu­tion within the next six months, its term would automatically expire after those six months,”^[1056] it acted to prevent a failure in the political process. “Constitution making is not an exercise that can continue indefinitely without a fresh electoral mandate,” Former Chief Justice Kalyan Shrestha later explained in an interview with Mara Malagodi.

15.2.3 Ginsburg's political and policy insurance

Tom Ginsburg famously showed how judicial review is more likely to be instituted when constitution-makers predict losing power after constitutional adoption or revision, as the judiciary can protect the drafters' values that they might not be able to maintain through the political process. Judicial review, in this sense, is a type of political or policy insurance through which constitution-drafters can

Why there? 281 protect their future political interests.^[1058] Constitutional unamendability, mainly explicit, and its judicial enforcement can be another useful insurance tool.

In Nepal, for example, the 1990 Constitution included an unamendable provi­sion (Art. 116) prohibiting amendments contrary to the “spirit of the Preamble.” The idea, as Malagodi elaborates, was to preserve the constitutional monarchy and multiparty democracy, which were at the core of the political compromise leading to the constitution.^[1059] This provided a dual insurance: “the King endeav­oured to prevent a republican turn, while on the other hand, the political parties sought to preclude a return to monarchical absolutism.”^[1060]

In Thailand, meanwhile, constitutional amendments cannot overthrow the democratic regime with the king as the head of the state. Because the king is con­sidered “the core of Thai political arrangement,” as Tonsakulrungruang explains, the constitution protects with the most extreme rigidity - unamendability - the idea that Thailand is and must remain a democratic kingdom.^[1061] And this Thai- style democracy with the king as the head of the state was repeated often by the Constitutional Court. Arguably, even under the 1997 Constitution that provided a more liberal model of democracy with a Constitutional Court with a long list of rights, an unamendable provision was inserted, which is a type of insurance, in case of political loss.

The judiciary and the army are two modern institutions founded by King Chulalongkorn over a century ago during the modernization of the Siamese Kingdom. Both remain unchanged ever since... The two institutions there­fore are the bastions of conservative royalists. They were part of a vast net­work of the king's allies.^[1062]

While such unamendability could not block a completely new constitution­making process, it could hinder such a process, as already occurred when the Constitutional Court held that the 2007 constitution, adopted by a referendum, could not be replaced through the ordinary legislative powers of parliament; rather, it required a referendum.^[1063]

15.2.4 Hirschl's hegemonic preservation

Ran Hirschl's hegemonic preservation theory offers a complementary political account to Ginsburg on judicialization. According to Hirschl, elites who foresee themselves losing power establish constitutional review as a strategy for preserv­ing some of their substantive values by placing them outside the realm of ordi­nary law-making.^[1064] A twist to Hirschl's theory arises when courts use the BSD to preserve their own powers.

Indeed, there seems to be an increasing trend in global constitutionalism of courts applying the BSD to invalidate constitutional amendments aiming to affect judicial review, the structure of the judicial system, or the ways in which judges are appointed or removed. As Po Jen Yap and Rehan Abeyratne convincingly demonstrate, such constitutional amendments have recently been invalidated through BSD as violating unamendable principles as judicial independence or separation of powers.^[1065] In other words, various judicial cases developing or apply­ing BSD serve to reinforce judicial supremacy or promote the courts' institutional self-interest, even if the amendments touching upon separation of powers or judi­cial independence are not necessary to protect against what David Landau terms abusive constitutionalism.^[1066]

For instance, in Pakistan, “judicial independence” with respect to judicial appointments was mentioned by the judiciary as another unamendable salient feature of the constitution.^[1067] In India, in Supreme Court Advocates on Record Association v Union of India ^[1068] the Supreme Court held that constitutional amendment that sought to replace the collegium system of judges' appointment with a National Judicial Appointment Commission violated judicial independ­ence, which is part of the Constitution's basic structure. Prima facie, it appears that this decision does not offer a convincing explanation as to why judicial independence requires judges to have the final word on appointments.^[1069] Thus, the best explanatory theory is that the judgment was largely motivated by insti­tutional self-interest: the Supreme Court was simply unwilling to relinquish its monopoly over appointments to the higher judiciary.^[1070]

Other places provide more examples. In Bangladesh, in its 1989 decision Anwar Hossain Chowdhury v Bangladesh,^[1071] the Supreme Court struck down part of the 8th Amendment that divided the Supreme Court's High Court Division into several regional permanent branches. Some, as Ridwanul Hoque remarks, argued “that the 8th Amendment decision reflected the Court's elitist mindset, and an ‘invisible' compromise between the judiciary and the Dhaka­based elite lawyers.”^[1072] In Bangladesh v. Asaduzzaman Siddiqui (2017),^[1073] the Supreme Court Appellate Division invalidated the Sixteenth Amendment, which made judges removable upon a presidential order supported by a two-thirds majority in parliament, rather than on the recommendation of a Supreme Judicial Council. In contrast with the Indian case, this Amendment would have vested the judicial removal power entirely in political hands. Accordingly, and considering the history of martial law and emergency rule in Bangladesh, this decision can be better justified.^[1074]

In Malaysia, HP Lee and Yvonne Tew elaborate how the basic structure doc­trine has developed historically.^[1075] While in the past Malaysian courts were def­erential to the government in light of the “dominant-party democracy,”^[1076] the 2018 elections in which the ruling Barisan National coalition lost an election for the first time not only brought a political transition but also opened the door for the strategic assertion of judicial power. As Yvonne Tew writes: “The Malaysian Federal Court's assertions of judicial power, which occurred even before the democratic transition in 2018, have become all the more relevant now.”^[1077] This decline of political dominance allowed the Federal Court to defend and strengthen its authority, inter alia, by adopting the BSD in order to preserve its institutional power. Two recent Federal Court cases, Seminyeh Jaya^[1078] and Indira Gandhi,^[1079] invoke the BSD, and while neither invalidates a constitutional amend­ment, they powerfully assert that judicial power resides only in the civil courts. Indira Gandhi further declared that judicial independence and the separation of powers constitute part of the Constitution's basic structure.^[1080]

So, to conclude, Nelson is correct in his remark that “with reference to consti­tutional ‘basic structure'.. judicial activism is also associated with broad institu­tional interests: judges encroach on parliament's constituent power to protect the interests of the judiciary.”^[1081] This can be regarded as another type of hegemony preservation, this time emerging from the judicial hegemon itself. Of course, this is not to say that strong judicial protection, even through BSD, is unnecessary. Often, especially in the contest of populism and democratic erosion, an aggressive application of judicial power can be crucial for protecting judicial independence and - in turn - protecting other democratic institutions.^[1082]

15.3