Six forms of judicial nullification

So far we have canvassed the power of judicial nullification in broad terms mostly rooted in theory. It is now time to apply theory to practice, specifically to show how courts have deployed the power of judicial nullification when confronted with justiciable claims that a constitutional amendment is unconstitutional.

Before proceeding it is worth specifying when the power of judicial nullifica­tion is properly described as “extraordinary.” It is extraordinary, and quite prob­lematic, where the power is exercised in violation of a constitutional prohibition on its use or when it is exercised without express constitutional authorization, including where the constitution is silent on its authorization. The power of judicial nullification must be accepted as legitimate where the codified constitu­tion expressly contemplates its use. The power is at its strongest where the con­stitution containing this authorization has been approved through a deliberative process of popular ratification.

12.3.1 Procedural irregularity

Judicial practice around the world reveals that courts have nullified constitutional amendments when, in the court's determination, an amendment has been passed in a procedurally irregular manner. The procedural irregularity that serves as the basis for nullifying the amendment concerns the adequacy of the process of vot­ing to initiate, ratify, or promulgate an amendment.

For instance, in Brazil, the Supreme Federal Tribunal has on more than one occasion identified procedural irregularities in a constitutional amendment. In 2007, the Court identified a procedural irregularity with an amendment that had been approved ten years prior but that was only then revealed to have failed to achieve the required supermajorities in the National Congress. Amending the Brazilian Constitutions requires 60 percent of each house of the National Congress to approve a proposal on two separate readings.^[828] Constitutional Amendment n.19/1998 sought to modify the legal regime for the hiring and career development of civil servants, which is codified in Article 39 of the Brazilian Constitution. But the amendment had earned only 298 votes in the Chamber of Deputies on the first reading - fewer than the required 60 percent supermajority.

There are examples of procedural irregularity in Asia. One is evident in Thailand, as described in Khemthong Tonsakulrungruang’s chapter in this vol­ume, where the Constitutional Court nullified an amendment to create an elected Senate because the Speaker had rushed the parliamentary debate and a related vote.^[829]

For another example of a procedural irregularity in Asia, we turn to Taiwan. In one case, the National Assembly adopted a set of amendments in 1999 that the Constitutional Court of Taiwan subsequently invalidated on both procedural and substantive grounds.^[830] The constitutional challenge began when members of the Legislative Yuan filed a petition arguing that the amendment passed by the National Assembly - where votes had been cast in anonymous ballots in the second and third readings - violated the Constitution’s amendment rules.^[831] The petitioners argued also that there were irregularities in the vote because some of the amendment proposals had been defeated in the second reading but were still voted on again in the third.^[832] The challengers raised other concerns, includ­ing that the amendment improperly extended term limits and also sowed confu­sion about their duration.^[833] The Court held the amendment unconstitutional.

12.3.2 Subject-rule mismatch

The second category of cases points to the second reason why courts have nulli­fied a constitutional amendment: a subject-rule mismatch. Where a constitution authorizes more than one procedure to amend the constitution, it is generally the case that these amendment procedures vary according to their difficulty and according also to the kinds of subjects those procedures may be deployed to amend. We often see this arrangement in constitutions that codify an escalating threshold of constitutional amendment, where there exists more than one proce­dure of constitutional amendment and where the threshold of agreement needed to ratify an amendment increases according to the importance of the constitu­tional rule to be amended.

For instance, the South African Constitution creates three amendment proce­dures, each linked to different parts and principles in the Constitution.^[838] The low­est amendment threshold requires two-thirds approval in the National Assembly.^[839] It is the Constitution’s general amending formula and may be used to amend all parts and principles not specially assigned to a higher amendment threshold.

There is a consequence to this design. It raises the possibility that political actors may try to use an easier amendment procedure to amend part of the con­stitution that requires the use of a higher, more onerous procedure. We have seen this in many cases around the world, including in Ecuador. The question before the Ecuadorian Constitutional Court was which specific amendment procedure lawmakers should use to amend presidential term limits. Unsurprisingly, amend­ment opponents argued that the more rigorous procedure should be used, while amendment proponents preferred the easier route. The Constitutional Court ultimately ruled that the amendment could proceed under the less onerous pro­cedure because it did not change the fundamental structure of the constitution.^[844] One could imagine a similar constitutional controversy in an Asian country whose constitution codifies multiple amendment procedures. For instance, in Myanmar, the Constitution codifies two basic amendment procedures.^[845] The default pro­cedure requires approval from three-fourths of the bicameral legislature.^[846] The other is expressly designated to amend matters of special importance in the

Constitution and is consequently harder to use because it combines the default procedures with a national referendum, making an amendment harder to accom­plish.^[847] A court, then, in Asia or elsewhere, could nullify an amendment made using what is deemed to be the wrong procedure.

12.3.3 Temporal limitations

The third category of cases where courts have nullified a constitutional amend­ment involves a violation of constitutionally specified durations of time. For instance, constitutional amendment rules often specify temporal limitations on when the constitution may be lawfully amended. One kind of temporal limitation is a safe harbor restriction, which prohibits political actors from making amend­ment proposals for a defined period of time. For example, a safe harbor may prohibit the introduction of a constitutional amendment for a certain number of years after the ratification of a new constitution, as in Cape Verde.^[848] A safe harbor may alternatively limit the proposal of an amendment after a successful amend­ment of the constitution, as in Greece and Portugal.^[849] Alternatively, a safe harbor may bar the reintroduction of a defeated amendment proposal until a defined period of time has elapsed, as we see in the Estonian Constitution.^[850]

There are also deliberation requirements, which compel political actors to consider the merits of an amendment proposal within a predetermined interval or period of time. They come in two forms: ceilings and floors. The Costa Rican Constitution offers an example of a deliberation ceiling insofar as it requires a special commission to render advice on the proposed amendment within no more than 20 working days.^[851] This is the upper limit for the commission to deliber­ate on the matter before the proposal proceeds through other steps. A court could nullify a promulgated amendment that had violated this temporal limita­tion. Conversely, the South Korean Constitution offers an example of a delib­eration floor.^[852] In order to formally amend the South Korean Constitution, the President must make an amendment proposal public for at least 20 days.^[853] A deliberation floor like this one is the corollary of a deliberation ceiling.

12.3.4 Codified unamendability

Courts around the world have also exercised the power of judicial nullification in a fourth category of cases: when an amendment violates a codified unamendable rule. Codified unamendability refers to a textual rule prohibiting amendment, even where political actors could assemble the majorities needed to amend the rule, value, principle, structure, symbol, or institution that is protected against amendment. For instance, constitutions around the world designate various items as unamendable, including human dignity in Germany,^[854] republicanism in France,^[855] international law standards in Switzerland,^[856] and the national flag in Turkey.^[857] Constitutional designers can make virtually anything unamendable at the moment of constitutional creation.^[858]

Consider the effect ofunamendability in one specific instance. The Constitution of the Czech Republic codifies an unamendable rule protecting the “essential requirements for a democratic state governed by the rule of law.”^[859] This rule was put to the test when the Constitutional Court evaluated the constitutionality of an amendment that sought to shorten the term of the Chamber of Deputies.^[860] The Court nullified the amendment, and with it the decision of the President to call new elections for the Chamber, on the basis of this codified unamendable rule. The amendment, in the Court's view, violated the fundamental prerequi­sites of democracy guaranteed by the Constitution.^[861] The Court specified how the amendment would have changed an essential requirement for a democratic state: “That requirement is that the free competition among political forces be subject to the same rules, and, especially, to rules set in advance.”^[862] The Court made it clear that it had a duty to “protect the material focus of the constitutional order” when the Constitution is threatened by an improper amendment, as here, in the Court's view.^[863]

Several constitutions in Asia codify unamendable rules that could provide the predicate for a court to exercise the power of judicial nullification. For instance, the Cambodian Constitution expressly forbids amendments to the constitutional monarchy as well as to the system of liberal multiparty democracy,^[864] and the Indonesian Constitution disallows amendments to the unitary form of the state.^[865] In addition, the Nepalese Constitution bars amendments that violate “self-rule of Nepal, sovereignty, territorial integrity and sovereignty vested in people,”^[866] while the Thai Constitution prohibits amendments changing the form of the state.^[867] Courts in these Asian states could try to nullify amendments implicating these codified rules, as we have seen elsewhere.

12.3.5 Interpretive unamendability

Sometimes the unamendable rule may not appear anywhere in the constitutional text. This opens a fifth avenue for courts to exercise the power of judicial nullifica­tion. In these cases, the high court in a jurisdiction may believe that an unwritten norm is central to the polity, and it may apply that unwritten norm as a basis for nullifying a constitutional amendment. Rather than nullifying the amendment with reference to a codified unamendable rule, courts in this fifth category will nullify an amendment because it violates the court's own interpretation that some part or principle of the constitution is unamendable despite there being noth­ing codified in the constitution to that effect. It is a very controversial form of the power of judicial nullification, as Surya Deva suggests in his chapter for this volume, arguing that if a court exercises the power selectively and for self-serving purposes, the court risks weakening its own legitimacy.^[868]

There are examples of the judicial nullification of amendments on the basis of this kind of interpretive unamendability. For example, the Supreme Court of Belize invalidated an amendment proposing to protect the power of the National Assembly to amend the Constitution with only limited judicial review.^[869] The Court held that limiting its power to review the constitutionality of amendments would violate the basic structure of the Constitution, and those efforts were void.

The Court could point to no codified unamendable rule in the Constitution. The basis for the Court's decision was the preamble, whose values, the Court wrote, “have to be preserved for all times to come” and “cannot be amended out of existence.”^[870] For the Court, these special values include the rule of law, judicial review, the separation of powers, and “maintaining the balance and harmony of the provisions of the Constitution.”^[871] Many of these values do not appear in the text of the Belizean Constitution’s preamble. As the Court explained, they are unwritten values that must be inferred from the preamble and that are rooted in the spirit of the Constitution: “[E]ven though provisions of the Constitution can be amended, the National Assembly is not legally authorized to make any amendment to the Constitution that would remove or destroy any of the basic structures of the Constitution of Belize.”^[872] This was reason enough for the Court to nullify the amendment - even in the context of a constitutional text that codi­fied no rule as unamendable.

Asian courts have exercised this power, too. The most prominent example comes from India, where the Supreme Court has nullified amendments that have violated a Court majority’s interpretation ofwhat constitutes the “basic structure” of the Constitution. In Minerva Mills Ltd. v. Union of India, the Court invoked the basic structure doctrine to nullify amendments to India’s formal amendment rules.^[873] The amendments had proposed to limit the Court’s power to review constitutional amendments. The amendments declared that “no amendment of this Constitution... shall be called in question in any court on any ground”^[874] and that “for the removal of doubts, it is hereby declared that there shall be no limitation whatever on the constituent power of Parliament to amend by way of addition, variation or repeal the provisions of this Constitution under this article.”^[875] Nothing in the text of the Indian Constitution prohibited this amend­ment proposal - neither in the procedure used to propose it nor in the content it sought to introduce into the Constitution - yet the Court drew on its interpre­tation of the “basic structure” of the Constitution to reason that the proposed amendment should be nullified as unconstitutional. This doctrine has travelled from India to Malaysia, as H.P. Lee and Yvonne Tew explain in their chapter for this volume,^[876] and may potentially travel to Pakistan, as Matthew Nelson suggests in his own chapter.^[877] The doctrine may already exist in a peculiar form China, as Ryan Mitchell argues, insofar as some rules - namely those referring to guoti (or “state form”) - could be treated as unrevisable through positive law.^[878] Ridwanul Hoque highlights a potential pathology of the doctrine in Bangladesh: it may have grown to cover so much of the unwritten constitution that it effectively transforms what should be a theoretically amendable constitution into a practi­cally unamendable text.^[879]

12.3.6 Supranational constitutional restrictions

The last of six categories of instances in which courts have exercised the power of judicial nullification involves supra-constitutional rules. 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.^[880] In the case of a signatory country amending its constitution in violation of this international charter, the adjudicatory body could find the amendment in conflict and therefore incompatible. For example, constitutional amendments in Nicaragua in 2004 and Togo in 2005 were found to violate the rules of regional multinational organizations.^[881] In Asia, it is conceivable that a national high court or a supra-constitutional court could nullify a constitutional amendment where the amendment is held by the national or supra-constitutional court to violate the rules or practices of a charter to which the country is a signa­tory. Indeed, this is precisely the case in Vietnam; one scholar currently argues that the Vietnamese Constitution violates international human rights norms and is therefore unconstitutional.^[882]

12.4