Introduction: Unconstitutional constitutional amendments in a nutshell
The idea of unconstitutional constitutional amendments has taken a central role in global constitutionalism. Over the years, constitution-makers have increasingly imposed explicit limits on constitutional amendment procedures: while between 1789 and 1944, only 17% of world constitutions enacted in this period included unamendable provisions, between 1945 and 1988, 27% of world constitutions enacted in those years included such provisions, and out of the constitutions which were enacted between 1989 and 2015, more than half (54%) included unamendable provisions.1 Unamendable provisions mostly refer to constitutional values, rules, and institutions that are considered the constitutional order's core values, in an attempt to preserve the core of the nation's constitutional identity - or the one which they aspire to.2 Explicit unamendability is not merely declarative.
In some countries, such as Brazil, Germany, and the Czech Republic, it is enforced through the exercise of substantive judicial review of constitutional amendments, ensuring their compatibility with the unamendable provisions.3The fact that a constitution does not include explicit unamendability does not necessarily mean that the constitutional amendment power is absolute and that all the parts of the constitution are amendable. Constitutional courts around the world have recognized a core of basic constitutional principles which should be regarded as implicitly unamendable. The most famous example is the Indian one, where in Kesavananda Bharati v. State of Kerala (1973), the Indian Supreme Court held that the power of the parliament “to amend the constitution does not
* I thank Bui Ngoc Sun and Rehan Abeyratne for inviting me to participate in this project, and the participants in the conference for their comments.
1 Yaniv Roznai, Unconstitutional Constitutional Amendments - The Limits of Amendment Powers (OUP 2017) 20-1.
On the origins, differentiation, and migration of unamendable provisions, see Michael Hein, ‘Entrenchment Clauses in the History of Modern Constitutionalism' (2018) 86(3-4) Legal History Review 434.2 Roznai (n 1), mainly chapter 2.
3 Roznai (n 1), mainly chapter 8.
DOI: 10.4324/9781003097099-15
Why there? 275 include the power to alter the basic structure, or framework of the constitution so as to change its identity,”[1016] as it is “a precious heritage,”[1017] creating what has come to be known as the “basic structure doctrine” (or BSD).[1018]
The BSD migrated into neighboring and other states, and was applied, in various forms and variations, in courts in Bangladesh, Pakistan, Uganda, Kenya, Taiwan, Colombia, Peru, Belize, and Slovakia. In these countries, courts declared that some basic features, fundamental principles, or material core of the constitution are so imperative to the constitutional order and its identity that they are beyond the amendment power even without any explicit limitations.[1019]
Where courts enforce implied or explicit limitations on constitutional amendments, they regard themselves as “guardians of the constitution” and its core values.[1020] Of course, while in some countries the doctrine has been adopted, in other countries courts have rejected their authority to substantively review amendments on various grounds.[1021]
So, unamendability and the unconstitutional constitutional amendment doctrine have their manifestations in Latin America,[1022] Europe,[1023] and - as this book elaborates - also in Asia.[1024] This book indeed focuses on the latter region, where important developments both in jurisprudence and constitutional politics have been occurring. This chapter seeks to provide an explanatory theory behind the doctrine of unconstitutional constitutional amendments in Asia.
Elsewhere, I have elaborated on the constitutional theory behind the doctrine.
I have claimed that the constitutional amendment power is a delegated legal competence which acts in trust and is therefore limited both explicitly and implicitly. Firstly, it must obey those explicit conditions stipulated in the constitution. Secondly, the body which holds the constitutional amendment power in trust cannot use it in order to destroy the constitution from which its authority derives. The amendment power is the internal method that the constitution provides for its self-preservation. By destroying the constitution, the delegated amending power undermines its own raison d’etre. To amend the constitution as to destroy it and create a new constitution would be ultra vires. Also, since every constitution consists of a set of basic principles and features, which determine the totality of the constitutional order and make up the “spirit of the constitution” and its identity, the constitutional amendment power cannot be used to destroy the basic principles of the constitution. The alteration of the constitution’s core results in the collapse of the entire constitution and its replacement by another - but this is for the people’s primary constituent power, not the delegated organs, to decide via a proper channel of higher-level democratic participation and deliberations. And finally, like any governmental organ, the amending authority - acting as trustee of the people - cannot abuse its powers and must act in good faith.[1025] Accordingly, when courts enforce limitations on constitutional amendments, they ensure that the amendment power does not exceed its authority, thereby protecting popular sovereignty and the vertical separation of powers between the primary constitution-making power and the secondary constitutional amendment power.[1026]In this chapter, I do not repeat the abovementioned theoretical framework, but - as the focus of this book is on the politics of unconstitutional constitutional amendments - I wish to provide some explanatory remarks on this issue. In Section 15.2, I list various explanatory theories that can explain why courts have intervened in various constitutional amendments in Asia. These theories are not mutually exclusive but reinforcing. In Section 15.3, I provide a brief look to another jurisdiction in Asia - Israel - and to some of the recent debates on the applicability of the BSD in Israeli constitutional law. In Section 15.4, I elaborate on the institutional features that can explain why doctrines such as the BSD are necessary in certain countries. Section 15.5 concludes.
15.2