Introduction

There has been undoubted growth not just in scholarly interest in unamendabil­ity, but also in its judicial use around the world.^[935] Courts from across the world have at least considered, if not fully embraced, doctrines of unconstitutional con­stitutional amendment, either in the form of enforcing a formal constitutional eternity clause or seeking to defend implicitly immutable constitutional principles and basic structures.

In this chapter, I want to remind us that unamendability itself can be prone to abuse. Taking the constitutional politics surrounding unamendability seriously reveals it to be open to misuse and instrumentalised at the stage of constitutional drafting, as a consequence of dynamics in the constituent assembly or drafting body, or indeed later, when a basic structure doctrine may emerge. As we have long known about constitutional rigidity mechanisms in general, they will on balance serve to insulate elites and have been relied on to stifle much-needed democratic change rather than protect against democratic erosion.^[938] The Asian case studies so comprehensively covered in this volume, several of which I draw on in this chapter as well, amply show this ambivalence of unamendability.

I should clarify that I am not arguing that unamendability is always likely to be abused, whether by the political branches or the courts, and can never serve a positive defensive function. Mine is a reminder that this abuse can and does hap­pen, and that the constitutional contexts where unamendability has most appeal - divided, post-conflict, fragile - are also the contexts most likely to result in the abuse of unamendability.^[939] The paradox then is that it is precisely where most needed that unamendability may be most vulnerable, and most likely to pro­vide cover for - rather than protect against - the erosion of democratic and rule of law safeguards.

My argument thus proceeds in three steps. First, by exploring the constitu­tional politics of constitution-making resulting in the adoption of eternity clauses, I find the latter often to be the products of intense political bargaining. Eternity clauses then become facilitators and guarantors of the hard-fought political pact, entrenching bargaining imbalances and exclusion rather than, or sometimes alongside, democratic, rule of law, and human rights guarantees. Second, I show that the entrenchment of majoritarian and exclusionary values and principles, including via eternity clauses and unamendability doctrines, is most likely to hap­pen in fraught constitutional contexts: those that are divided, fragile, and affected by conflict. Third, I show how constitutional review of unamendability in such contexts may well exacerbate rather than help mitigate these problems.

I draw on a number of Asian case studies, especially Thailand, Nepal, India, and Bangladesh, as they help illustrate different varieties of my exclusionary unamendability thesis. Section 14.2 thus highlights the exclusionary potential of entrenching certain state characteristics - in the case of Thailand, monar­chism and the role of the King as Head of State - and their propensity to lead to reduced avenues for democratic change. Section 14.3 looks at Nepal's case as one in which constitutional entrenchment and constitutional nationalism are inter­twined and have been over various constitution-making iterations. Section 14.4

Eternity clauses as tools 259 explores the rise of judicial turf protecting through recourse to unamendability, specifically invocations of judicial independence as part of basic structure doc­trines in India and Bangladesh. While exclusionary unamendability is not a dis­tinctly Asian problem by any means, the spread of unconstitutional constitutional amendment doctrines in the region over recent years makes it especially ripe for this type of analysis.

14.2