Textual Challenges to Constitutional Unamendability

4.1 The Meaning of ‘Amendment'

The term ‘amendment’, McGovney argues, encompasses as an element of euphe­mism, the assumption that it is an improvement. But ‘beyond this euphemistic tinge, amendment as applied to alteration of laws, according to current dictionaries means alteration or change’.^[213] Thus, arguably, in the absence of explicit limita­tions, one cannot infer legal consequences from the grammatical interpretation of the word ‘amendment’.

These arguments carry some force, but they are not entirely convincing. First, the limited scope of amendment powers does find implicit textual support in the literal meaning of the term ‘amendment’.^[215] Literally, the Latin word emendere means ‘to correct fault’. This, Walter Murphy reminds us, does not mean ‘to deconstitute and reconstitute’.^[216] Based on this textual meaning, Murphy argues that, ‘amendments that would change the basic principles on which the people agreed to become a nation or overturn compromises on any principle that made the coming together possible would not be amendments at all, but efforts to construct a new constitution’.^[217] The textual basis distinguishes between amendments and revolutionary changes to the constitution.^[218] Even ‘in our everyday discourse’, Sotirios Barber notes, ‘we distinguish amendments from fundamental changes because the word amendment ordinarily signifies incremental improvements or corrections of a larger whole’.^[219] This textual argument is not novel^[220] and was recently influential in courts decisions that recognised implicit unamendability, for example, in India^[221] and Bangladesh.^[222]

Second, it can be argued that in those numerous and limited cases in which constitutions allow for their total revision, this authorisation is an explicit per­missibility given to the delegated amending authority to revise the entire docu­ment.^[223] However, this is the exception rather than the rule.

Lastly, even in some other languages, the amending provisions carry the same meaning as amendment. For instance, the Israeli Basic Laws use the Hebrew term Tikun (llp'n), which means ‘correction’, and even the old Turkish version, which is still often used in the literature, uses the term Tadilat which originally means ‘repairing.’ In any event, the vast majority of national constitutions use the term amendment (or its equivalent).^[227]

4.2 Expressio Unius Est Exclusio Alterius

The mere existence of implicit unamendability is contentious. Had a constitution’s framers intended to prohibit certain amendments, one could reasonably expect them to have included a provision to that effect.^[228] This problem obviously exists with regards to those constitutions that lack any unamendable provisions, and it is aggravated when the constitution contains certain unamendable provisions. According to the maxim expressio unius est exclusio alterius, the existence of explicit limitations provides evidence that the constitution-makers considered limits on the amendment power, that the omission of other limitations was intentional and, that therefore, implicit unamendability should be excluded.^[229] Indeed, John Vile argues that this is ‘perhaps the strongest argument against implicit limits on the amending process’.^[230] In 1871, George Helm Yeaman attacked the notion of implicit limitations on the amendment power:

We cannot have two constitutions, one of the letter and one of the spirit, the letter amendable and the spirit not.

This is akin to David Dow’s argument that Art. V of the U.S. Constitution is exclusive and that its words ‘mean what they say’.^[232] Likewise, Gozler defends the approach according to which no limitations exist apart from those explicitly included in the constitution.^[233]

These arguments are important, but they are not entirely resounding. First, I share Otto Pfersmann’s position that the approach taken by Gozler is too narrow. ‘Many things’, Pfersmann notes, ‘are indirectly explicit, i.e. they are contained in the meaning of the norm-formulation, accessible though interpretation’.^[234] CJ Sikri’s opinion in Kesavananda takes a similar approach: ‘in a written constitution it is rarely that everything is said expressly. Powers and limitations are implied from necessity or the scheme of the Constitution’.^[235]

Second, and more importantly, any organ established within the constitutional scheme to amend the constitution cannot modify the basic principles supporting its constitutional authority; even in the absence of any explicit limitations.^[236] Hence, explicit and implicit unamendability are not mutually exclusive rather they are mutually reinforcing. Explicit unamendability should be regarded as confirmation, a ‘valuable indications’ that the amendment power is limited, but not as an exhaustive list of limitations.^[237]

Examples from comparative law strengthen this presumption. For instance, under the 1961 Turkish Constitution, the provision establishing the republican form of the state (Article 1) was explicit unamendable.^[238] Even so, the Turkish Constitutional Court held in 1965 that the unamendability of the form of state implicitly extends also to the characteristics of the republic (Article 2) stating that the amendment power cannot provide for ‘causing regression to the Turkish soci­ety, destroying fundamental right and freedoms and the principle of the rule of law, in a word, taking away the Essence of the 1961 Constitution’.^[239] Later, the Court reaffirmed that there are certain principles which comprise the constitution’s ‘spirit and philosophy’ and its competence to examine whether amendments do not damage the ‘coherence and system of the constitution’.^[240] Likewise, the Italian Constitution includes an explicit unamendability according to which ‘The repub­lican form of the state may not be changed by way of constitutional amendment’.^[241] Italian scholars contend that additionally, fundamental constitutional principles such as democracy, inviolable rights and the rigidity of the constitution itself are implicitly unamendable.^[242] The Italian Constitutional Court accepted this approach in its decision 1146/1988, stating that:

The Italian Constitution contains some supreme principles that cannot be subverted or modified in their essential content [...].

In other words, notwithstanding the explicit unamendable provision, the Constitutional Court recognised further implicit unamendability of the supreme constitutional principles.^[244]

It is with this understanding that one can accept Maurice Hauriou’s claim that there are always implicit supra-constitutional principles: ‘not to mention the republican form of government for which there is a text, there are many other principles for which there is no need to text because of its own principles is to exist and assert without text’.^[245] Even Georges Burdeau, who took a formal approach in his doctoral thesis,^[246] later changed his mind to claim:

[T]o say that the power of revision is limited, is to support, not only that it is bound by the terms of form and procedure made its exercise by the text - which is obvious - but also that it is incompetent, basically, to repeal the existing constitution and develop a new one [.] by repealing it, it would destroy the basis of its own jurisdiction.^[247]

I am fully aware that an argument in favour of implicit unamendability may seem contradictory in that it both upholds and rejects the constitution; in one breath it views the constitution as so sacred that interference with its basic principles is prohibited, while in the next breath it claims that the constitution’s own amendment procedure must be ignored or recognised only to a limited extent.^[248] However, to demonstrate the absurdity of relying solely on explicit unamendability imagine the extreme examples of amendments providing that the constitution has no legal validity, or that the Parliament extends its term indefinitely without elections.^[249] Such amendments undermine the entire legitimacy of the constitutional order.