UCA as constitutional politics

The animating idea of this volume is that UCA forms part of, and is influenced by, constitutional politics. The book seeks to explore and explain how and why the idea of unconstitutional constitutional amendments informs political activi­ties through diverse forums, by various social and political actors, through both formal and informal constitutional amendment processes in Asia.

Why constitutional politics in the context of UCA? Elsewhere, one of us sug­gested four reasons: (1) the political nature of the constituent power; (2) the political nature of foundational constitutional questions; (3) the political nature of constitutional disagreements; and (4) consequently the political protection of constitutional unamendability.^[43] First, the constituent power is not a legal aggre­gate entity but a politically constructed one. Second, unconstitutional consti­tutional amendments often touch on fundamental questions of a polity. These questions are not merely legalistic. These are also political questions as they deal with political ideals and ideas, political systems, political institutions, and they may inform political activities and behaviors. Third, the questions of unconsti­tutional constitutional amendments may generate higher level political disagree­ments. Constitutional questions often create disagreements, but the fundamental questions concerning the basic structure and identity of the constitutional order may be more controversial and, hence, induce greater disagreement. Fourth, the protection of constitutional unamendability is not merely a legal or judicial concern, but also a political one. As questions of unconstitutional constitutional amendments are foundational political questions which generate reasonable political disagreements, it is myopic to think that UCA is or should be limited to the courts.

Consider first the discursive model of UCA in China and Vietnam. Unamendability in the socialist single-party regimes of China and Vietnam is not a judicial doctrine. Courts in these counties do not have the constitutional review power due to the socialist principle of democratic centralism, which sub­ordinates courts to the supreme legislature. Rather, unamendability is a part of political discourse. Without judicial review, the ideas of constitutionalguoti and unconstitutional constitution are only debated in academic or popular forums by intellectual actors triggered by the process of formal constitutional amend­ment (China) and replacement (Vietnam). Unamendability is also not a design issue in China and Vietnam as their socialist constitutions do not have eternity clauses. However, unamendability is not necessarily associated with constitu­tional review and design: it can be entrenched through political construction. Political construction of unamendability can be procedural and substantive. Richard Albert's concept of “constructive unamendability” captures the pro­cedural aspect: “[a] constitutional rule is constructively unamendable when the codified thresholds required to amend it are so onerous that reformers cannot realistically (though theoretically) satisfy the standard.”^[45] The substantive aspect of political construction of unamendability is that the existing political reality renders content in the constitution unamendable although amendments are tex­tually plausible. The cases of China and Vietnam fall into this substantive aspect. Every provision in their constitutions is theoretically amendable. However, as the Communist Party remains the single dominant party in these countries, it is practically impossible to amend the core socialist commitments that the party attempts to pursue.

The discursive model of UCA in Japan also includes several political aspects although it is different from those of China and Vietnam. Unlike the two social­ist countries, Japan is a constitutional democracy with judicial review. However, Japan's Supreme Court has been conservative and rarely exercised its judicial review power.^[47] Rather, the government has enjoyed the power of constitutional interpretation (through its Cabinet Legislation Bureau), and the Court tends to avoid making judgments on the government's interpretations.^[48] Therefore, public intellectuals and civil society organizations have challenged the government’s constitutional interpretations (a form of informal constitutional amendments^[49]) as unconstitutional through public debate and social mobilization alongside liti­gation. Japan’s basic protection of freedom of speech and association enables the wider public to debate the constitutionality of the government’s interpretations. The same cannot be said of China and Vietnam.

The implication of the discursive model in China, Vietnam, and Japan is that UCA is not necessarily a doctrine used by courts: it can be a critical political theory that informs public debate on the (un)constitutionality of constitutional change. In addition, the discursive model shows that the idea of UCA is dynamic because it is not fixed by constitutional texts but presented, circulated, debated, and (de)legitimatized in the public.

The denotive model, by contrast, sees courts enter the constitutional politics of UCA without claiming the last word on the validity of specific amendments. In Malaysia and Pakistan, courts have recognized the basic structure doctrine or salient features doctrine, respectively, and given content to those doctrines.^[50] The Federal Court of Malaysia held that judicial review, separation of powers, rule of law, and protection of minorities fall within the unamendable basic structure.^[51] The Supreme Court of Pakistan, meanwhile, held that the following salient fea­tures cannot be amended: “[F]ederalism, parliamentary democracy and Islamic provisions including independence of judiciary.”^[52] The Court subsequently ruled that a “parliamentary form of government blended with Islamic provisions” con­stitutes part of the basic structure.^[53]

But why have these courts adopted and given substance to these UCA doc­trines if they do not actually enforce them? One reason might be that, in these fragile democracies, courts are hesitant to intervene too forcefully because they might face political reprisals.

A strategic motivation may apply in Pakistan too, though in a slightly differ­ent form. As Nelson explains, judicial independence has been subject to frontal assaults, most notably in 2007 when General (President) Musharraf tried to sack Chief Justice Chaudhry.^[57] Though Chaudhry successfully challenged this removal attempt at the Supreme Court, Musharraf later declared a state of emergency, suspended the Constitution, and removed several judges (including Chaudhry) from their posts. Chaudhry was later reinstated as Chief Justice, but the institu­tional battle between the government and the Supreme Court has continued.^[58] Given this recent history, Supreme Court justices may wish to avoid direct con­frontations with the political branches and, hence, have avoided striking down constitutional amendments on salient features grounds.

Another reason for the Pakistan Supreme Court's reticence in this context is the institutional culture of the Court. As Nelson informs us, “[A]ll of my respond­ents felt that basic structure jurisprudence in Pakistan was now more closely tied to historically specific personalities and the politically contingent patterns of judi­cial activism (or reticence) attached to them.”^[59] His respondents specifically men­tioned the personality of the Chief Justice as significant in determining the future trajectory of the salient features doctrine. This idiosyncratic, personality-driven style of judicial decision-making has been noted in other studies of South Asian constitutionalism.^[60] In addition to rule of law and coherence-based concerns that may arise from this approach,^[61] it also makes the future path of the law very dif­ficult to predict.

The final denotive case is Nepal. By refusing to extend the first Constituent Assembly's term indefinitely - on the grounds that extensions would violate Nepal's 2007 Interim Constitution - the Supreme Court may have stepped on a political landmine. The 2015 Constitution, unlike the Interim Constitution, contains an eternity clause; namely, the Constitution “shall not be amended in way that contravenes with self-rule of Nepal, sovereignty, territorial integrity and sovereignty vested in people.”^[62] While this clause might be enforced through litigation, the principles therein are not amendable to judicial review. Unlike, say, judicial independence or the separation of powers, sovereignty and territo­rial integrity are subjects usually confined to the political domain. Moreover, as Malagodi argues, the 2015 Constitution weakens the Supreme Court in sev­eral ways. Judicial review may only be conducted by a single Constitutional Bench, which is likely to slow down an already backlogged docket; judges can be impeached and removed more easily from office; and judicial appointments must be confirmed by a Parliamentary Hearings Committee, which may politicize the process.^[63] Finally, the 2015 Constitution, which emerged from the Court- mandated second Constituent Assembly, has proved unpopular with several minority groups, who are likely to blame the Court for their predicament under the current constitutional order.^[64] Thus, the Supreme Court of Nepal, partly as a result of its UCA-related interventions into the Constituent Assembly, finds itself today on shaky institutional grounds and enjoys limited public support.

We turn now to the decisive model of UCA. The four cases here - Taiwan, Thailand, India, and Bangladesh - illustrate the political contingency behind judicial decisions to strike down constitutional amendments.

Meanwhile, Thailand was a fragile democracy when the country's Con­stitutional Court ruled that the proposed amendments in 2013-14 were unconstitutional.^[68] As Thailand's democracy was not stable, the court was more vulnerable to political influences. Tonsakulrungruang observes that

The Constitutional Court was equipped with the ultimate power to inter­vene in politics.. Moreover, at a personal level, anti-Thaksin figures were recruited onto the bench. As a result, the Constitutional Court represented the interests of the minority to suppress Thaksin and his political allies.^[69]

In this context of judicial politicization, when the Court decided to strike down the Yingluck Shinawatra government’s amendment proposals which arguably aimed to dismantle authoritarian legacies,^[70] it appears to have been representing the political interests of the anti-Thaksin actors.

These accounts depict two poles of the normative spectrum of UCA judicial enforcement. At the positive end, UCA can be used to protect and consolidate a democracy as it was in Taiwan. Its judicial use was supported by the broader public (including civil society organizations). The normative weight of positive unamendability is connected to values associated with liberal constitutionalism. At the negative end, UCA can be used to undermine the existing democracy as in Thailand. Its judicial use was supported by some political factions, but not by the broader public. The instrumental weight of negative unamendability rests on justifications associated with authoritarianism.

The two South Asian cases in this group - India and Bangladesh - fall some­where in the middle of the UCA normative spectrum. In India, Surya Deva defends the Supreme Court’s use of basic structure review as part of a “wider system of checks and balances in times of serious democratic deficits in all institu­tions of governance.”^[71] Deva argues that India faces such deficits today, as Prime Minister Narendra Modi’s government has adopted a centralized and quasi­authoritarian mode of decision-making, sidelining political opponents, dimin­ishing the freedoms of speech and press, and politicizing erstwhile independent institutions.^[72] In 2019, the Modi government also used executive orders and ordinary legislation to effectively change the constitutional status of Jammu and Kashmir under Article 370 of the Constitution. Thus, for the BSD to be effec­tive in today’s political context, Deva contends that it must be expanded. The Supreme Court should not only be able to strike down formal amendments, but also laws or orders that have the effect of amending the Constitution. However, the Supreme Court cannot be trusted to wield this great power with appropri­ate care and forbearance. In the Fourth Judges case, as Deva explains, the Court struck down a constitutional amendment and related legislation that would have created a National Judicial Appointments Commission.^[73] The Court’s reason­ing suggested that any judicial appointment procedure that did not confer pri­macy on judges in the decision-making process would be a violation of judicial independence under the BSD. This logic is both faulty and self-serving,^[74] leading Deva to propose that the BSD should also apply to the judiciary, to prevent it from becoming an unaccountable, “supra-constitutional institution.”^[75]

Meanwhile, in Bangladesh, Ridwanul Hoque charts how the Supreme Court's Appellate Division (SCAD) put the country on a trajectory towards one-party rule. Hoque highlights the SCAD's short order on 10 May 2011, which held that the non-partisan caretaker government (NPCTG) was unconstitutional.^[76] The NPCTG was established in 1996 to conduct free and fair elections in Bangladesh, which had hitherto experienced periods of military rule and constitutional crisis. Though the NPCTG had been manipulated by the Bangladesh Nationalist Party when it was in power, Hoque argues that it was a crucial institution in the preser­vation of this fragile democracy. In 2011, the Awami League (AL) had an abso­lutely majority in parliament and moved quickly to enact the 15th Amendment to the Bangladesh Constitution, which abolished the NPCTG system. Though the 15th Amendment purported to introduce democracy-enhancing reforms, such as entrenching the BSD within the text of the Constitution and making funda­mental rights unamendable, it was rushed through Parliament without public consultation or input from the opposition political parties. Hoque, therefore, argues that the 15 th Amendment was exclusionary, and has resulted in the AL consolidating power through elections that have not been fair or competitive.

Both Deva and Hoque, then, see UCA as a potentially positive, democracy­enhancing doctrine. However, their chapters are cautionary tales of how, in prac­tice, dominant political parties have been able to undermine democracy in India and Bangladesh with little judicial resistance or, in the case of Bangladesh, even unwitting judicial assistance. While neither of these judiciaries adopt UCA for “abusive” ends as those described in the Thailand case,^[77] their recent uses vel non of the basic structure doctrine do not make for optimistic reading if one hoped for the courts to intervene to preserve core elements of liberal constitutionalism.

In sum, we hope that readers will gain new insights from the detailed case stud­ies and broader reflections in the chapters to follow, and that this volume will lead to further scholarship on the law and politics of constitutional amendments - and constitutionalism generally - across Asia.