Uncodified constitutions
We can now turn to the odd cases of constitutions that are not codified, or “unwritten” constitutions as they are sometimes called. Are these subject to the BSD, and if so, how do we know what the BSD consists of, when there is no text into which we can add implication or use to explain the basic structure?
The UK, Israel, and New Zealand are well-known examples of this.
From one point of view, not only does the BSD have no application, but the notion of constitutional amendment itself has no application either. Hence, the BSD has, so to speak, nothing of substance to which it could be attached. In these constitutions, we find that what corresponds to a constitutional amendment may simply be a legislative act, so that the constitution is “uncontrolled.”[931] Thus, it is a matter of opinion, not law, whether any piece of such legislation is a constitutional amendment. It remains of course a largely hypothetical question whether in such system the judges could strike down a statute for unconstitutionality. There are cases in the UK and in New Zealand that support such a proposition. The immediate answer might be in the negative, simply because there is no principle of constitutional supremacy in the absence of a codified constitution. Yet there are indications that such striking down might be possible on such grounds as that the law contradicts the “fundamental principles of the common law” (in the UK and New Zealand, at least), or is perhaps so fundamentally destructive of the rule of law as to be “unconstitutional,” that is, not recognised as being consistent with the notion of “law” by the courts.[932]Here one might indeed say that, although the BSD does not strictly have application, as we are not implying anything into any text, there is in effect a basic structure that is entrenched in some fashion and could be used to support judicial review of legislation.
This could be seen as a translation of sorts of the BSD into the terms of a system that cannot, strictly speaking, make use of it. This a classic process in comparative law. We may note here that there is no constitutional “moment,” but rather a gradual evolution of ideas that become in effect politically entrenched despite the absence of specific legal entrenchment. In the event of the striking down of a law as unconstitutional, such a system would have graduated or evolved into a different type of system - from parliamentary supremacy to an unusual form, perhaps, of constitutional supremacy.A possibly analogous case is where there is a written constitution but that constitution is not entrenched. This might be because it just takes the form of an ordinary law and there is no special procedure different from ordinary legislation that is required to amend it. It would be uncontrolled in the sense indicated earlier. Or it may be that, as with Thailand, there have been so many constitutions that the currency is devalued, and no constitution is regarded as entrenched politically, even if it states that it is the supreme law, or even that some provisions are beyond the amending power or even a new constitution, to change.[933]
Analyses of Thai constitutions naturally then attempt to discover what it is that survives all constitution-making processes, finding the essence of Thai constitutionalism. This is often analysed in terms of what is called the “democratic regime with the king as head of state,” a fundamental principle repeated in constitutions, especially preambles, since 1932, when the absolute monarchy was overthrown and the first constitution was drafted.[934] Here for basic structure we look, not to the constitution itself, but to what is fundamental and lasting, the golden thread running through all constitutions. In other words, the position is, oddly, rather similar to those instances where there is no codified constitution, in that we look beyond the text to underlying social facts, or political, even quasi-religious, principles, even if the principles recognised in Bangkok are not the same as those recognised in London, or Tel-Aviv, or Wellington.
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