Typology of Asian cases
The ten case studies in this book could be organized in several ways. Geographically, the volume has broad coverage of the three main Asian sub-regions: East Asia (China, Japan, Taiwan), Southeast Asia (Malaysia, Thailand, Vietnam), and South Asia (Bangladesh, India, Nepal, Pakistan).
But more interesting for our purposes is the spectrum on which these cases fall as to their treatment of UCA as a theory and doctrine. Depending on how UCA is used, we develop a three- part typology of our cases: discursive, denotive, and decisive. Each of these is an ideal type. Though none captures the full complexity and dynamism with which constitutional actors have wrestled with UCA, each captures a significant mode of engagement with the concept in three or more of our case studies.In the discursive model, UCA is not adopted in the courtroom but informs public and intellectual discussion. Japan, China, and Vietnam fall within this model.
In Chapter 2, Koichi Nakano analyzes the political processes in Japan that led to informal constitutional amendments through the Abe government’s interpretation in July 2014. In the Japanese case, informal amendments might be considered unconstitutional on normative, substantive, and procedural grounds; for instance, if they surpassed the limitations of informal amendments, breached the principles of constitutionalism, violated constitutional pacifism, or exercised arbitrary power. Civil society, the bar, and former judges argued that the informal constitutional amendments are unconstitutional. This chapter explores the dynamics of this public constitutional activism surrounding these informal constitutional amendments.
In Chapter 3, Ryan Mitchell explores the discursive dynamics of Chinese constitutional fundamentals referred to in the People’s Republic of China as guoti (fundamental form of state). Guoti has ideational and institutional aspects of constitutional cores.
Its ideational aspects (liberal, socialist...) vary depending on the historical context. The same can be said of its institutional manifestations (rights, party leadership.). The chapter also explores the constitutional discourse on guoti surrounding the 2018 constitutional amendments. The idea was used in critical discussions on this topic. For example, it informed different ideational justifications of term limit entrenchment. Some justifications of term limit abolition are instrumental, necessity-based (continuity of reform), while other justifications of term limit entrenchment are normative and value-based. Second, guoti was constitutionalized through the 2018 amendments. For example, the chapter discusses the migration of party leadership (a core of Chinese socialist polity) from the Preamble to Article 1 of the Constitution. In addition, the 2018 amendments constitutionalize another core concept within guoti: socialism with Chinese characteristics. Third, the newly entrenched constitutional guoti has important implications for post-2018 constitutional discourse. Mitchell further argues that aspects of constitutionalized guoti seem beyond revision or even questioning.In Chapter 4, Bui Ngoc Son explores an academic paper criticizing Vietnam’s 2013 Constitution as an “unconstitutional constitution.” The paper was penned by Hoang Xuan Phu, a Vietnamese mathematician. Hoang argues that Vietnam’s 2013 Constitution is an unconstitutional constitution because some new provisions in the constitution violate fundamental principles established in preceding provisions. This chapter explores Hoang’s account of an unconstitutional constitution, while situating it within the broader national constitutional debates in Vietnam and comparative scholarship on unconstitutional constitutional amendments and unconstitutional constitutions. It argues that Hoang’s account of an unconstitutional constitution is a political, critical, and normative discourse on Vietnam’s Constitution.
Hoang’s arguments echo the arguments justifying the doctrine of unconstitutional constitutional amendments and the doctrine of unconstitutional constitutions in comparative scholarship. The Vietnamese case suggests that “unconstitutional constitutions” is not solely a judicial doctrine but can be a political theory which informs public constitutional discourse.The second, denotive model involves UCA as part of judicial rhetoric and reference. Malaysia, Pakistan, and Nepal are grouped within this model. While the courts in these countries have not invalidated constitutional amendments, judges have invoked variants of UCA doctrine in their judgments and have, therefore, affected the politics around thorny constitutional issues.
In Chapter 5, HP Lee and Yvonne Tew chart the “rising trajectory” ofMalaysian constitutional jurisprudence from the country's independence in 1957 to the present day. Central to their analysis are three recent cases - Semenyih Jaya3 Indira Gandhi,[33] [34] and Alma Nudo.[35] The first two cases witnessed the migration of the basic structure doctrine (BSD) from India to the Malaysian Federal Court. These judgments protected the judicial power against incursions from land assessors and the Syariah courts, respectively. They interpreted the Constitution as vesting judicial power only in the courts, and held that this power cannot be reduced or moved elsewhere. The basic structure doctrine was firmly entrenched in Alma Nudo. Building on the two previous judgments, Chief Justice Richard Malanjum declared that
while the Federal Constitution does not specifically explicate the doctrine of basic structure, what the doctrine signifies is that a parliamentary enactment is open to scrutiny not only for clear-cut violation of the [Constitution] but also for violation of the doctrine or principles that constitute the constitutional foundations.[36]
However, as Lee and Tew point out, none of these judgments actually struck down a constitutional amendment, leaving the future path of the BSD uncertain.
Indeed, the recent Maria Chin judgment, issued by a divided Federal Court, cast doubt on the applicability of the BSD in Malaysia,[37] though Lee and Tew argue that reports of its death are “greatly exaggerated.”[38]In Chapter 6, Matthew Nelson discusses the functional equivalent of basic structure review - the “salient features” doctrine - as it has developed in the context of Islamic features in Pakistan's Constitution. Nelson focuses on Article 62(1)(f) of the Constitution which, among other things, requires those standing for elections to Parliament as well as sitting parliamentarians to be ameen (trustworthy in a Quranic sense). The Pakistan Supreme Court has interpreted this provision broadly to disqualify several members of Parliament who had been found guilty of dishonesty by lower courts. The Supreme Court even disqualified Prime Minister Nawaz Sharif on this basis.[39] With this institutional conflict emerging between the Parliament and the Court, Nelson explores the likelihood of Parliament repealing this provision by constitutional amendment and whether the Supreme Court, asserting its own power, would find that amendment unconstitutional. The Court in 2015 declared that constitutional amendments violating salient features should be annulled,[40] but as in Malaysia, it remains to be seen whether, and in which context, the Court will actually exercise this power.
In Chapter 7, Mara Malagodi explores the unique case of Nepal's Constituent Assembly. Nepal went through a long transitional period as its 1990 Constitution, which established a constitutional monarchy and parliamentary government, was destabilized by a ten-year Maoist insurgency. As Malagodi explains, in 2005, the Maoist and mainstream parties agreed to repeal the 1990 constitution, leading to the adoption of an Interim Constitution in 2007. The government also formed a Constituent Assembly (CA) to draft a permanent constitution, but it was beset by delays.
After the CA's term was extended three times, the Supreme Court ruled that any further extensions would violate the Interim Constitution. When the government failed to meet that deadline and sought to amend the term of the CA again, the Supreme Court issued an order that effectively prevented any further extensions. As a result, Nepal was left without a functioning legislature for more than a year, and a new Constituent Assembly had to be formed. Malagodi explores the thorny theoretical issue of judicial intervention in the CA's exercise of constituent power - conventionally thought to be beyond the pale of judicial review - within the complex politics of transitional Nepal. She concludes that this bold assertion of judicial power contributed to the Supreme Court being weakened in several respects under the permanent 2015 Constitution.The third, decisive model involves judiciaries striking down constitutional amendments on UCA grounds.[41] Taiwan, Thailand, India, and Bangladesh exemplify this model. While the legal aspects of the relevant judgments have been analyzed in detail in past scholarship, the chapters in this volume place these judgments in their broader political context.
In Chapter 8, Jiunn Rong Yeh discusses Judicial Interpretation No. 499 issued by Taiwan's Constitutional Court in 1999, which declared constitutional amendments passed by the National Assembly as unconstitutional. The amendments dealt with parliamentary reform, provincial elections, and basic national policies. The chapter explores three political imperatives for the court's ruling on the unamendability (incremental constitutional reform, the status of the National Assembly, and the presidential election) and situates the Court as a political institution within the broader social and institutional dynamics. In particular, civil society mobilized to the Court to nullify the amendment. The chapter concludes that the Court functioned as an instrument for the people to exercise oversight on constitutional amendments.
In Chapter 9, Khemthong Tonsakulrungruang explores the Thai Constitutional Court's four decisions in 2013-14 on the constitutionality of proposed amendments to the 2007 Constitution. In contrast to the normative underpinnings of the doctrine of unconstitutional constitutional amendments, this chapter reveals that judicial rules on unamendability of amendments may undermine democracy in Thailand. It demonstrates that the proposed amendments sought to challenge the authoritarian features of the 2007 Constitution, which was barred by the court's decisions. Therefore, Tonsakulrungruang argues that judicial decisions on unconstitutional constitutional amendments in Thailand entrenched authoritarianism.
Perhaps the most widely known case ofUCA is in India, where the Kesavananda judgment (1973) inaugurated the modern trend towards courts defining the scope of implicit unamendability and striking down amendments that violate the Constitution's “basic structure.” Surya Deva, in Chapter 10, reviews the history and evolution of the basic structure doctrine within the context of two strands of politics. The first strand he calls the “politics of supremacy,” which involved a dispute between the political branches and the judiciary on who has the final word on constitutional meaning. Deva refers to the second strand as the “politics of legitimacy,” which is contested between dominant political coalitions and members of the public who believe majoritarian politics must abide by constitutional rules. Deva defends BSD as a necessary tool to prevent against majoritarian excesses, particularly in the current context of democratic erosion and the concentration of power in the Modi regime. He calls for a reconceptualization of BSD “as part of a wider constitutional mechanism of checks and balances, rather than as a judicial brahmastra (a weapon with no defences) against the legislature and/or the executive.”[42] He further argues that BSD should be applicable against the judiciary, to guard against judicial misuse of the doctrine.
A similar story emerges in Bangladesh. Ridwanul Hoque in Chapter 11 recounts how the Appellate Division of the Bangladesh Supreme Court (SCAD) recognized the basic structure doctrine in Anwar Hossain Chowdhury (1989) and has used the doctrine in increasingly divisive matters of constitutional law and politics. Hoque's analysis focuses on the politics surrounding the 8th and 15th Amendments to the Bangladesh Constitution. Hoque argues that while both amendments were framed as non-partisan improvements to the constitutional order, they were both driven - as he argues most constitutional amendments in Bangladesh are driven - by narrow party politics aimed at the consolidation and perpetuation of power. Because of the majoritarian nature of these amendments, they are often exclusionary, resulting in SCAD judgments that implicitly favor one political regime or coalition over the others. A major outcome of the 15th Amendment and the judgment in the 13th Amendment Case that led to it, according to Hoque, is that the Awami League led by Prime Minister Sheikh Hasina now presides over a country that is democratic in name only.
The final four chapters of this volume offer broad theoretical and comparative reflections on the law and politics of UCA. In Chapter 12, Richard Albert situates the judicial nullification power, as it has developed in Asia, within the global context, both to uncover the conceptual roots of this power across borders and regions, as well as to bring Asian cases into a wider conversation. He describes six forms of judicial nullification - procedural irregularity, subject-rule mismatch, temporal limitations, codified unamendability, interpretive unamendability, and supranational constitutional restrictions - and illustrates how each operates using examples from Asia and beyond.
Andrew Harding, in Chapter 13, interrogates the breadth of the basic structure doctrine. He asks whether we should conceive of BSD as a necessary consequence of constitutionalism, particularly when a constitution sets forth a democratic form of government, or whether it is a contingent doctrine, emerging from the constitutional history of a particular society. In making the case for the contingent view, Harding cautions against unwarranted or excessive uses of the doctrine. He argues that an unamendable basic structure is not always implied by the facts of constitution-making or entrenchment; that it should not be implied if constitutional provisions are protected by a referendum requirement; that the actual content of the doctrine varies by context; and that the BSD, in principle, should not apply to unwritten or unentrenched constitutions.
In Chapter 14, Silvia Suteu highlights the majoritarian, exclusionary tendencies of eternity clauses and UCA judicial doctrines. She argues that the potential of these mechanisms to forestall democracy and exclude minorities is greater in fraught constitutional contexts - societies that are divided, fragile, and affected by conflict. In Thailand, for instance, she notes that by making the monarchical system of government unamendable, successive Thai constitutions have constricted possible avenues for democratic change, leading to multiple political breakdowns and constitutional crises. In Nepal, Suteu shows how the 2015 Constitution entrenched a majoritarian, ethnocultural conception of citizenship as well as a federal structure that disadvantages minorities, particularly the Madhesi community, which may be detrimental to the country's stability and democratic governance.
Finally, in Chapter 15, Yaniv Roznai seeks to explain why UCA has been adopted across Asia. He deploys the following theories - Edward Crowin's higher law, John Hart Ely's democracy and distrust, Tom Ginsburg's political insurance, and Ran Hirschl's hegemonic preservation - and explains how each is apposite in certain political and historical contexts. Roznai argues that institutional factors affect the adoption vel non of UCA doctrines. These include the flexibility of the amendment process, party or executive dominance, the political-democratic amendment culture, and the existence and effectiveness of supra-national institutions. Roznai illustrates these features with reference to the case studies in the volume, as well as the case of Israel, where the Knesset plays the dual role of constituent power and national legislature and is dominated by the government. He concludes that in such a context there is greater justification for the judiciary to play a role in limiting the amendment power.
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