Practical Objections to Unamendability

3.1 Revolutionary or Forcible Change

The amendment process is meant inter alia, to forestall, as far as possible, revo­lutionary upheavals. Unamendability allegedly blocks any constitutional manner to amend certain principles.

It follows that in terms of constitutional dynamics, unamendability serves the exact opposite of its original purpose of preservation and stability: not only does it not prevent the changes but it invites and encourages the realisation of that change in an extra-constitutional manner.^[161] ‘Ulysses’, in the words of Jon Elster, ‘would have found the strength to break the ropes that tied him to the mast’.^[162] This might be especially dangerous in weak democracies which lack established democratic traditions or have an apparent history of coups, where the temptation to use extra-constitutional measures might be irresistible.^[163] This raises the inevitable question: if the change were to occur regardless of the temporary hindrance by a few judges, would it not be better to allow the change by peaceful constitutional means?^[164]

This is a legitimate concern which should be a warning sign for constitutional designers to use unamendability carefully.

3.2 Limited Effectiveness

A related practical objection is that unamendability is ineffective. Already in 1918, Lawrence Lowell wrote that ‘the device of providing that a law shall never be repealed is an old one, but I am not aware that it has ever been of any avail’.^[166] Likewise, Benjamin Akzin expressed his scepticism regarding the usefulness of unamendability:

One understands that we deal here with provisions which the respective constitution-makers hold in particular esteem and to which they would like to give added protection. But if this esteem is shared by the rest of the politically-active groups, this by itself should ensure that the standard procedure for constitutional amendments would protect them sufficiently; if, on the other hand, the demand for change were to become so strong that it could overcome these standard procedure, it is hardly imaginable that its protagonists would renounce their objectives only because the Constitution says that the provision is inviolable.^[167]

Those objecting to unamendability would simply treat it as ‘pointless impedi­ments, permissibly ignored’.^[168] Silvia Suteu and I have recently demonstrated how certain provisions of unamendability are especially vulnerable.

It appears that the effectiveness problem of unamendability has various aspects. First, as elaborated in the previous subsection, just as ‘no Constitution... can be expected to survive intact the social cataclysm involved in a true revolution’,^[170] unamendability cannot block extra-constitutional activity. As Hannah Arendt taught us, ‘in a conflict between law and power, it is seldom the law which will emerge as victory’.^[171] For example, the prohibition of the 1824 Mexican Constitution on altering the form of government did not prevent a coup d’etat, in which the con­servatives came into power and in 1836 replaced the Constitution with a new one that rejected federalism.^[172] In Greece, notwithstanding the unamendability protec­tion of the democratic system of government in the 1952 Constitution, the Constitution was suspended in April 1967 by a military putsch, which established a military dictatorship that lasted until 1974.^[173] The issue of unamendable provisions can thus be both a question of fact and norm.^[174] As a factual matter, the ability of physical power to force prohibited changes is unquestionable. From a normative perspective, the question is whether such changes would be valid according to the standards of the constitutional order.^[175]

Second, and related to the first aspect, the effectiveness of unamendability is directly linked to the effectiveness of the entire constitution. Where the constitution is mostly ignored, regarded as a mere parchment, one cannot expect unamendable provisions to be any more effective or operative than the constitution’s other pro­visions.^[176] Thus, unamendable provisions could be de jure valid, but de facto ignored.

Finally, the effectiveness of unamendability is related to its judicial enforcement. Claiming that amendment powers are limited and claiming that such limitations are enforced in courts are not identical claims.^[179] One may argue that although the amendment power is limited, it is not the role of courts to enforce these limita­tions.^[180] For example, in Norway^[181] and France,^[182] the existence of unamendable provisions did not necessarily lead to the judicial oversight over unamendability. In these states, one may argue, unamendable provisions are merely declarative and non-justiciable, which raises questions regarding their effectiveness.^[183] The same applies to implicit unamendability. In Pakistan, although the Supreme Court acknowledged a set of implicitly unamendable ‘salient features’ of the constitution, it used to draw a distinction between these limitations and their judicial enforce­ment, holding that limitations on the amendment power are to be enforced by the body politic through the ordinary mechanisms of parliamentary democracy, rather than by the judiciary.^[184] It is therefore clear that the heavy criticism against una­mendability (explicit or implicit) is mainly applicable when unamendability is deemed enforceable in courts or otherwise.^[185]

Admittedly, there is no easy answer for these challenges.

First, the fact that unamendability can be overridden by violent and extra-constitutional means should not severely undermine its usefulness in normal times and in states where political players understand that they have to play according to the democratic rules of the game. In that respect, unamendability, as I have explained in earlier occasions, is like a lock on a door.^[187] A lock cannot prevent housebreaking by a decisive burglar equipped with effective burglary tools, and even more so, the lock cannot prevent the entire door’s destruction by sledge­hammer or a fire. On the other hand, if we are dealing solely with honest people, there is no need for a lock since there is no fear that any of them will attempt to break into one’s house. The lock’s utility is in impeding and deterring those who might not overcome the temptation to exploit an easy opportunity to improve their condition at the expense of fellowmen in the absence of effective safety measures. Similarly, unamendability cannot block extra-constitutional measures and is not needed once the socio-political culture is that of binding the rules and self-restraint.

Karl Loewenstein was correct in observing that in times of crisis, unamendability is just a piece of paper which political reality could unavoidably disregard or ignore. But in normal times, unamendability can be a useful red light before certain ‘un­constitutional’ constitutional changes and stand firm in the normal development of political momentum.^[188] Hence, unamendability should not be underestimated.

Second, whereas it is true that unamendability cannot serve as a complete bar against movements aiming to abolish the protected subjects,^[189] it is not completely useless.

3.3 Enhancing Judiciary's Power

From an institutional perspective, enforceability of unamendability shifts the locus of constitutional change from those authorities entrusted with the amendment power towards the courts, allegedly granting them the last word on constitutional issues.^[192] Courts can use unamendability as a strategic trump, applying it selectively, and overall elevating their powers vis-a-vis other branches.^[193] This problem is accen­tuated with regards to implicit unamendability, where, in contrast with situations in which the textual standard provides guidance and constraints, the judiciary has sweeping power to determine the ‘spirit’, ‘basic structure’ or ‘basic principles’ of the constitution.^[194] For example, the Indian basic structure doctrine has been heavily criticised for its open-ended nature and the wide discretion that it grants judges.^[195]

Judicial enforcement of unamendability may not only lead to a power imbalance by elevating the judiciary’s power vis-a-vis the executive and legislature branches, but might also fracture the fragile balance of judicial review.^[196] One of the arguments justifying the judicial review of ordinary legislation is that courts do not necessarily possess the last word, since unpopular judicial decisions may be overturned by constitutional amendments.^[197] In the French constitutional debate, Georges Vedel famously compared constitutional amendments to the ancient institution of ‘lit de justice' by which the sovereign king could appear before the court and overturn a judicial decision. Similarly, in a sort of lit de justice, the people can overturn a court's ruling through constitutional amendments.^[198] This democratic check would arguably disappear if courts could review constitutional amendments.^[199]

Judicial enforcement of unamendability undeniably enhances the judiciary's power. Yet, the theory behind unamendability manages to moderate this concern. Again, even if courts have the power to review constitutional amendments, they do not possess final decision-making power. Recall, decisions by the primary con­stituent power are not submitted to judicial review, but rather merely those deci­sions adopted by the limited secondary constituent power.^[200] Consequently, the judicial branch is not sovereign and can still be overridden by an exercise of the superior primary constituent power.

Moreover, the theory of unamendability calls for judicial restraint. The exercise of the extreme judicial power to declare constitutional amendments as unconsti­tutional should be undertaken only in the most aggravated cases and exceptional circumstances in which the constitutional change strikes at the heart of the con­stitution's basic principles, depriving them of their minimal conditions of existence thereby substantively replacing the constitution with a new one.^[201] Of course, a review of amendments that overturn prior judicial decisions might damage the court's legitimacy^[202]; therefore, courts would be inclined to restrain themselves and refrain from adjudicating the issue of amendments that overrule judicial decisions. Especially if constitutional amendments are adopted through demanding amend­ment procedures which are multistages, inclusive, participatory, deliberative and time-consuming, courts should restrain themselves when adjudicating constitutional amendments.^[203] All this, however, should not exclude the recognition of the power of judicial review of amendments.

Additionally, one should not be overly petrified by the possibility of courts annulling constitutional amendments. Commonly, courts can interpret amendments, which have become part of the constitution once adopted, during their ordinary judicial review of legislation.^[204] If courts have the authority to interpret the con­stitution, and in doing so to grant to a constitutional provision a very narrow or broad interpretation, then allowing it to invalidate an amendment is not such a radical step. True, in the case of interpretation, it would be open to another court to choose a different interpretation in the future. Nevertheless, the results of an interpretation that significantly differs from the legislative intent, or is detached from the provision’s wording, could be more severe than the act of annulment.^[205] As Christine Landfried remarks:

A clear-cut invalidation of a law can give the legislature more room for political manoeuvring, in that a new law can be enacted. However, the declaration that only one particular interpretation of a law is constitutional often entails precise prescriptions and can quite easily result in law-making by the Constitutional Court.^[206]

In the case of annulment, the ‘ball returns to the hands’ of the amending authority, which can reconstitute the amendment according to the court’s decision or otherwise. In the case of interpretation, if the amending authority is not satisfied with the new meaning of the amendment, it would have to annul the amendment through the amendment process, only this time, the ‘ball has left the hands’ of the amending authority.^[207] It is now in the public sphere shaped by the hands of the judiciary until its replacement with a new amendment.

Lastly, judicial review of amendments can be viewed as a useful mechanism for relaxing the main abovementioned challenges of unamendability as it allows courts to interpret the protected principles and give them modern meaning. What repub­licanism meant in France in 1791 is infinitely different from what it means nowadays,^[208] and the Norwegian Constitution’s spirit and principles are not necessarily those of 1814, but the present ones.^[209] Indeed, constitutional identity is never a static thing but can always be reinterpreted and reconstructed.^[210] The courts’ ability to review amendments can have important benefits in that respect. While unamendability is aimed, inter alia, to provide stability for society, it might cause constitutional stagnation. The ability of courts to review amendments and to interpret (and reinterpret) unamendable provisions manages simultaneously to preserve the core elements of the protected principles while allowing a certain degree of change, and in so doing eases rigidity with the changing needs of soci­ety.^[211] In the same vein, albeit suffering from uncertainty, some view the vagueness of implicit unamendability as an advantage; being judicially formulated, it contains an inherent flexibility as it leaves space for subsequent judicial interpretation, clarification, and public and political dialogues and deliberations.^[212]

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