Institutional explanations
Unamendability is a mechanism that aims to provide a block on legislative constitutional change mechanisms. It aims to protect against undermining the fundamental principles of the constitutional order and guard against abuse of power by the constituent power.
However, the need to have this “lock on the door” should be analyzed in context and in light of other institutional and social factors. There are many such institutional features, but I shall highlight four factors that are crucial to my mind for understanding why BSD was developed in various cases and denied in others.15.4.1 Flexibility of the amendment process
Generally, the more difficult the amendment process is, the less there is a need for a doctrine of implied limits. The design itself provides various mechanisms of checks and balances on the amendment power. If the amendment process contains many complications, is time-consuming and includes temporal limitations, inclusive of various different bodies, or includes explicit unamendable provisions, there is less need for judicially created implied limitations. As Tomas Talik writes concerning the Slovak Constitutional Court decision on unconstitutional constitutional amendments:
It is very easy to amend the Slovak Constitution... In the judgment... the Constitutional Court recognised that flexibility was a problem when it noted that the existence of a substantive core meant that the Constitution was no longer helpless against the forces of a qualified majority of MPs and the possible misuse of the power to amend the Constitution. A victory in parliamentary elections was not tantamount to a coup d’etat... The discovery of a substantive core - the internal hierarchy within the text of the Constitution - shielded from constitutional amendment by the Constitutional Court, has augmented the rigidity of the text.[1110]
This judicial protection of implied limitations, such as the BSD, becomes increasingly required in flexible constitutions that can be amended fairly easily.
So, as HP Lee and Yvonne Tew show in Malaysia, the two-thirds majority required for constitutional amendments posed no constraint on the exercise of the power to amend the Constitution and the Constitution has been extensively amended.[1111] And, as Tonsakulrungruang summarizes regarding Thailand, “the 2007 Constitution set a low bar for amending it but, through a series of decisions, the Constitutional Court significantly raised that bar,” by creating a procedural distinction between constitutional amendment and constitutional replacement - the latter requiring a different and more inclusive and demanding process, and by creating implicit unamendability thereby making the amendment procedure extremely rigid through its judicial decisions.[1112] As Landau and Bilchitz remark, “courts working in systems with flexible amendment rules but in contexts where there are powerful and unrestrained executives or political forces may feel pressure to police the use of the constitutional amendment rule itself.”[1113] The doctrine of unconstitutional constitutional amendments makes the amendment process more rigid and corrects, in a way, the problem of over-flexibility.15.4.2 Party or executive dominance
Related to amendment flexibility is the question of party or executive dominance. Having a rigid two-thirds majority requirement for amendment is not of much use when the legislature is controlled by one party. For example, many African countries are ruled by dominant parties which have more than two-thirds of the seats in parliament. In such cases, the two-thirds majority requirement for amendments is not a major obstacle to amending the constitution. For example, in the 2005 Tanzanian elections, the ruling party occupied 77.8% of parliament’s seats, easily overcoming the two-thirds requirement, which makes the Tanzanian Constitution very flexible in practice.[1114]
When one party or the executive controls the amendment process, there is a heightened risk of abuse of the amendment process.
Multiple parties or a weak executive are politically checked so there is less need for judicial involvement. And so, Lee and Tew write about Malaysia: “From independence in 1957 to 2018, the same ruling coalition.. had continuously dominated the political landscape for close to six decades.”[1115] This control over more than two-thirds of parliamentary seats, they elaborate, allowed for the constitutional amendment process to be utilized by the government and the ruling party to “maintain and increase its grip on power.”[1116] Even though the Federal Court in Malaysia in those years did not invalidate formal amendments, it “arguably left the door open to the possibility of future adoption [of the basic structure doctrine].”[1117] And in Taiwan, as Yeh explains, one can explain the different approach of the court in JY Interpretation No. 499, in which an amendment was invalidated, and in JY Interpretation No. 721, which upheld an amendment, as follows. The former was an institutional check on the “notorious National Assembly” that had a monopoly and “could hardly be controlled by the mechanism of checks and balances,”[1118] while in the latter case, the amendment was enacted also by the Legislative Yuan and passed through a more democratic and decentralized process.[1119]15.4.3 Political-democratic-amendment culture
Years ago, Benjamin Akzin wrote that
Among the countries which have whole-heartedly endeavoured to conform to the pattern of constitutionalism, there are two that have hitherto adhered to the British system and have not introduced a formal Constitution in the full sense of the word - New Zealand and Israel, though in the latter country the debate is still continuing. Possibly the British solution may suit New Zealand. For Israel, with its rather supercharged political climate, this writer would certainly recommend the added restraint of a formal Constitution.[1120]
When the culture is that of “it's not done” - certain political actions are unthinkable and no one attempts to undermine the basic rules of the game - unamendability is less required.
As Gert Jan Geertjes and Jefri Uzman showed, in politically enforced constitutions such as the UK or the Netherlands, there is a sense of “covert unamendability” according to which there is a constitutional convention, which may be enforced through disobedience of governmental branches, that certain constitutional arrangements shall not be abolished or significantly altered.[1121]When there is no stable political-democratic culture that respects the rules of the game, an external arbitrator - in the form of the judiciary - is important. I therefore agree with Silvia Suteu that unamendability is especially needed and
most often found... in contexts where democracy is new, fragile, and contested that the “lock on the door” function of unamendability - whether enshrined in an eternity clause or a basic structure doctrine - becomes most salient. It is precisely in hybrid or contested democratic contexts that unamendability is paradoxically most needed and most prone to abuse.[1122]
In this respect, amendment culture is important. The rigid or flexible dimension usually focuses on the amendment procedure. Political scientists have attempted to measure constitutional rigidity by focusing on amendment rates and amendment procedures and hurdles.[1123] Yet what may matter even more to the rigidity or flexibility of a constitution than voting thresholds or temporal limits is the amendment culture in a constitutional tradition, meaning “the set of shared attitudes about the desirability of amendment, independent of the substantive issue under consideration and the degree of pressure for change.”[1124] In other words, constitutional rigidity is not merely institutional but also attitudinal and factual.[1125] Take for example the UK which is considered a flexible constitution in light of the amendment procedure. Arguably, it is in fact a rigid constitution, and its rigidity stems from the constitutional culture, which obliges actors to show self-restraint in handling constitutional matters.[1126] In Israel, for example, the amendment culture is not restrictive at all.
In 2020 alone, 9 amendments to the basic laws were made and since 2013, 28 amendments have been made to the basic laws and 3 more new basic laws were enacted. In other words, Israel in recent years has had more constitutional changes than throughout the history of the US Constitution. Basic laws are sometimes amended in a day and a half. Many of the amendments are temporary and for specific circumstances.[1127] In this context, implied limitations on the constituent authority to avoid misuse of powers seem almost inevitable.15.4.4 The existence or absence of effective supra-national
institutions
Finally, when a country is part of a strong regional mechanism, in which there are various political and legal machineries to ensure basic rules and values are respected, there is less of a need for a judicial development of a BSD as the various political actors are restrained in advance - a kind of a “chilling effect” - in trying to undermine constitutional fundamentals. Richard Albert thus correctly claims
where a country is a member of an international organization that has a charter of rules or practices, there may also be an adjudicatory body responsible for enforcing those rules and practices. In the case of a signatory country amending its constitution in violation of this international charter,
Why there? 295 the adjudicatory body could find the amendment in conflict and therefore incompatible.[1128]
Indeed, in various cases in Europe, America, and Africa, supra-national tribunals have held that they have the authority to review constitutional norms, and have even declared constitutional provisions as unconventional, in the sense that they violate international obligations and should be changed. And of course, supranational organizations are increasingly involved in issues such as domestic constitutional change.[1129] Such supra-national organizations and mechanisms provide another layer of protection and check on governmental powers, including on the constituent power.[1130] In the absence of such supra-national observations and scrutiny, the need for domestic supervision is strengthened.
15.5