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The conundrum of unconstitutional constitutional amendments

  • PO JEN YAP (a1)
Abstract

National courts, largely in South Asia and Latin America, have deemed unconstitutional certain constitutional amendments that have been enacted into law in their respective jurisdictions. In the article, this author explores the normative arguments for and against the judicial enforcement of implicit substantive constraints on formal constitutional changes. In essence, the author argues that, in determining whether judges should render the substance of constitutional amendments unconstitutional, one must examine how the impugned constitutional amendment was passed. In jurisdictions where a constitutional amendment can be passed by a dominant party/coalition without bipartisan support or the general support of the people, the courts may intervene, but only where the constitutional amendment(s) in question is/are so manifestly unreasonable that such a revision is akin to a substantial destruction of the pre-existing constitution. But no constitutional amendment should ever be judicially invalidated for violating any implied ‘basic features’ of the constitution when the amendment process is particularly cumbersome and requires significant bipartisan support and the general public’s express or implicit endorsement for the amendment to pass.

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*Email: pjyap@hku.hk
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1 See Y Roznai, ‘Unconstitutional Constitutional Amendments—The Migration and Success of a Constitutional Idea’ (2013) 61 AJCL 657; G Jacobsohn, ‘An Unconstitutional Constitution? A Comparative Perspective’ (2006) 4 IJCL 460; D Gwynn Morgan, ‘The Indian ‘‘Essential Features’’ Case’ (1981) 30 ICLQ 307; R Hoque, ‘Constitutionalism and the Judiciary in Bangladesh’ in S Khilnani et al. (eds), Comparative Constitutionalism in South Asia (Oxford University Press, New Delhi, 2013); A Kavanagh, ‘Unconstitutional Constitutional Amendments from Irish Free State to Irish Republic’ in E Carolan (ed), The Constitution of Ireland: Perspectives and Prospects (Bloomsbury Professional, Dublin, 2012).

2 Stacey, R, ‘Constituent Power and Carl Schmitt’s Theory of Constitution in Kenya’s Constitution-making Process’ (2011) 9 IJCL 601–2.

3 (2007) AIR (SC) at 861.

4 Art 31B of the Indian Constitution reads: ‘Without prejudice to the generality of the provisions contained in article 31A, none of the Acts and Regulations specified in the Ninth Schedule nor any of the provisions thereof shall be deemed to be void, or ever to have become void, on the ground that such Act, Regulation or provision is inconsistent with, or takes away or abridges any of the rights conferred by, any provisions of this Part, and notwithstanding any judgment, decree or order of any court or Tribunal to the contrary, each of the said Acts and Regulations shall, subject to the power of any competent Legislature to repeal or amend it, continue in force.’

5 I.R. Coelho (2007) AIR (SC) at [150].

6 Ibid at [55].

7 (1989) 1 BLD (Appellate Division) (Special).

8 Ibid at [295].

9 Ibid at [295] (Chowdhury J).

10 Ibid at [381].

11 C Bernal, ‘Unconstitutional Constitutional Amendments in the Case Study of Colombia: An Analysis of the Justification and Meaning of the Constitutional Replacement Doctrine’ (2013) 11 IJCL 349.

12 Murphy, W, ‘Merlin’s Memory: The Past and Future Imperfect of the Once and Future Polity’ in S Levinson (ed), Responding to Imperfection: The Theory and Practice of Constitutional Amendment (Princeton University Press, Princeton, NJ, 1995) 177.

13 (1973) AIR (SC) at 1461.

14 Ibid at [1195].

15 Art 368 of the Indian Constitution, in its original form before it was amended, so read: ‘An amendment of this Constitution may be initiated only by the introduction of a Bill for the purpose in either House of Parliament, and when the Bill is passed in each House by a majority of the total membership of that House and by a majority of not less than two-thirds of the members of that House present and voting.’

16 Kesavananda at [1480–1481] (see n 13).

17 [1981] 1 SCR 206.

18 Art 368(4) of the Indian Constitution, prior to its judicial invalidation, read: ‘No Amendment of this Constitution (including the provisions of Part III) made or purporting to have been under this article (whether before or after the commencement of section 55 of the Constitution (Forth-second Amendment) Act, 1976) shall be called in question in any court on any ground.’

19 Minerva Mills at 240 (n 17).

20 The 24th Amendment to Indian Constitution was upheld unanimously by the Supreme Court of India in Kesavananda v Kerala.

21 In contrast, the Supreme Court of Sri Lanka in Re the Thirteenth Amendment to the Constitution and the Provincial Councils Bill SLR-1987 Vol.2-P312 has applied textual arguments to reject expressly the application of the implied ‘basic structure’ doctrine. Given that art 82 of the 1987 Sri Lanka Constitution expressly provides that an amendment can be for ‘the repeal and replacement of the Constitution’, the Supreme Court held that it did not ‘agree with the contention that some provisions of the Constitution are unamendable’.

22 Murphy (n 12) 180.

23 D Landau, ‘Abusive Constitutionalism’ (2013) 47 UC Davis Law Review 196.

24 Ibid.

25 Sentencia 551/03 Colombian Constitutional Court (9 July 2003) [33].

26 Landau (n 23) 201.

27 The 5th Amendment provided that all amendments or repeals made to the Bangladesh Constitution from 15 August 1975 to 9 April 1979 (inclusive) by any proclamation or Proclamation Order of the Martial Law Authorities were deemed to have been validly made, and could not be called into question before any court or tribunal or other authority. See Khondker Delwar Hossain v Bangladesh Italian Marble Works (2010) 62 DLR (AD) 298.

28 The 7th Amendment to Bangladesh Constitution provided that all proclamations, proclamation orders, Chief Martial Law Administrator’s Orders, Martial Law Regulations, Martial Law Orders, Martial Law Instructions, ordinances and other laws made from 24 March 1982 to 11 November 1986 (inclusive) had been validly made, and could not be called into question before any court or tribunal or other authority. See Siddique Ahmed v Government of Bangladesh (2011) 63 DLR 565.

29 JAG Griffith, ‘The Brave New World of Sir John Laws’ (2000) 63 MLR 165.

30 PJ Yap, ‘Defending Dialogue’ (2012) PL 538.

31 J Goldsworthy, ‘Homogenizing Constitutions’ (2003) 23 OJLS 505.

32 RG Wright, ‘Could a Constitutional Amendment Be Unconstitutional?’ (1990) 22 Loyola University Law Journal 753.

33 Landau (n 23) 237.

34 See Sentencia C-574-/11 Colombian Constitutional Court (22 July 2011).

35 Tribe, L, ‘A Constitution We Are Amending: In Defence of a Restrained Judicial Role’ (1983) 97 Harvard Law Review 433.

36 Kesavananda at [1539] (see n 13).

37 Kesavananda at [949] (see n 13).

38 Harding, A, ‘The Death of a Doctrine? Phang Chin Hock v Public Prosecutor’ (1979) 21 Malayan Law Review 373.

39 J Vile, ‘The Case against Implicit Limits on the Constitutional Amending Process’ in S Levinson (ed), Responding to Imperfection: The Theory and Practice of Constitutional Amendment (Princeton University Press, Princeton, NJ, 1995) 198.

40 [1999] 4 IR 343.

41 Section 7(3) of the 19th Amendment provides: ‘If the Government declare that the State has become obliged, pursuant to the [Belfast] Agreement, to give effect to the amendment of this Constitution referred to therein … this Constitution shall be amended as follows.’

42 Riordan at 359–60 (n 40).

43 Tribe (n 35) 442.

44 Art 46 of the Constitution of Ireland 1937 reads: ‘Every proposal for an amendment of this Constitution shall be initiated in Dáil Éireann as a Bill, and shall upon having been passed or deemed to have been passed by both Houses of the Oireachtas, be submitted by Referendum to the decision of the people in accordance with the law for the time being in force relating to the Referendum.’

45 Art V of the USA Constitution.

46 Art 368(2) of the Indian Constitution.

47 R Guha, India after Gandhi (Macmillan, New York, 2007) 491–9.

48 M Pal Singh, ‘India’ in D Oliver and C Fusaro (eds), How Constitutions Change: A Comparative Study (Hart Publishing, Oxford, 2013) 177–81.

49 In Indira Nehru Gandhi v Raj Narain (1975) AIR (SC) at 2299, a majority on the Indian Supreme Court invalidated the impugned part of the 39th Amendment, which had sought to insulate the Prime Minister’s election from judicial review, on the basis that it violated the implied ‘basic features’ doctrine, but the Court also unanimously upheld the validity of her election on the facts. See G Austin, Working a Democratic Constitution: A History of the Indian Constitution (Oxford University Press, New Delhi, 1999) 318–24 for an insightful discussion on the history of the case.

50 In Minerva Mills v Union of India, (1981) 1 SCR 206 the Supreme Court unanimously invalidated art 368(4) of Indian Constitution, which ousted any judicial review over constitutional amendments.

51 See Reddy, O Chinnappa, The Court and the Constitution of India: Summits and Shallows (Oxford University Press, New Delhi, 2008) 5372.

52 Landau (n 23) 236–7 (n 23).

53 According to art 174 of the Republic of China (Taiwan) Constitution: ‘The Constitution may be amended upon the proposal of one fifth of the total number of Delegates to the National Assembly and by a resolution of three fourths of the Delegates present at a meeting with a quorum of two thirds of all Delegates to the National Assembly.’

54 JY Interpretation No 499, 24 March 2000.

55 Ibid.

56 In 2005, art 12 of the Amendment of the (Republic of China) Constitution was passed and it so reads: ‘Amendment of the Constitution shall be initiated upon the proposal of one-fourth of the total members of the Legislative Yuan, passed by at least three-fourths of the members present at a meeting attended by at least three-fourths of the total members of the Legislative Yuan, and sanctioned by electors in the free area of the Republic of China at a referendum held upon expiration of a six-month period of public announcement of the proposal, wherein the number of valid votes in favor exceeds one-half of the total number of electors. The provisions of Article 174 of the Constitution shall not apply.’

57 Kesavananda at [704] (Shelat and Grover JJ) (see n 13).

58 Kesavananda at [309] (Sikri CJ) (see n 13).

59 L Fuller, The Morality of Law (Yale University Press, New Haven, CT, 1964) 44.

60 Fallon, R, ‘Judicial Manageable Standards and Constitutional Meaning’ (2006) 119 Harvard Law Review 1285–92.

61 See TRS Allan, Constitutional Justice: A Liberal Theory of the Rule of Law (Oxford University Press, Oxford, 2001); R Dworkin, Taking Rights Seriously (Harvard University Press, Cambridge, MA, 1977); R Dworkin, Law’s Empire (Harvard University Press, Cambridge, MA, 1986).

62 A Vermeule, Law and the Limits of Reason (Oxford University Press, Oxford, 2008) 86.

63 PJ Yap, ‘Defending Dialogue’ (2012) PL 534.

64 Kesavananda at [316] (Sikri CJ); [620] (Shelat and Grover JJ); [1480] Khanna (see n 13).

65 Kesavananda at [704] (Hegde and Mukherjea JJ); [620] (Shelat and Grover JJ) (see n 13).

66 Kesavananda at [1206] (Reddy J) (see n 13).

67 Vile (n 39) 199.

68 See V Jackson, ‘Unconstitutional Constitutional Amendments: A Window into Constitutional Theory and Transnational Constitutionalism’ in M Bäuerle et al. (eds), Demokratie-Perspektiven: Festshcrift fur Brun-Otto Bryde zum 70. Geburststag (Mohr Siebeck, Tübingen, 2013) 47, 60–2.

69 See J Colon-Rios, ‘Beyond Parliamentary Sovereignty and Judicial Supremacy: The Doctrine of Implicit Limits to Constitutional Reform in Latin America’ (2013) 44 Victoria University of Wellington Law Review 521.

70 Colon-Rios, J, ‘The Legitimacy of the Juridical: Constituent Power, Democracy, and the Limits of Constitutional Reform’ (2010) 48 Osgoode Hall Law Journal 199.

71 Landau (n 23) 204–7.

72 Ibid.

73 Ramachandran, R, ‘The Supreme Court and the Basic Structure Doctrine’ in Kirpal, BNet al. (eds), Supreme But Not Infallible: Essays in Honour of the Supreme Court of India (Oxford University Press, New Delhi, 2000) 128–9.

74 See Landau, D, ‘Political Institutions and Judicial Role in Comparative Constitutional Law’ (2010) 51 Harvard International Law Journal 319.

75 Interestingly, Carlos Bernal has argued, for Colombia at least, that a constitutional amendment would be invalid if ‘it derogates the charter of constitutional rights, the rule of law, or the principle of the separation of power; or if, according to the normative argument, it changes the constitution in such a way that it can no longer be considered an institutionalization of deliberate democracy’. With respect, this proposal is unhelpful as the author in no way fleshes out the substantive content and meaning of the conceptual terms ‘rule of law’, ‘separation of power’ and ‘deliberative democracy’. The devil, as usual, is in the details. See Bernal (n 11) 356.

76 R (Animal Defenders International) v Secretary of State for Culture, Media and Sport [2008] 1 AC 1312 at [33]; Fok Chun Wa v Hospital Authority (2012) 15 HKCFAR 409 at [76].

77 See Associated Provincial Picture Houses v Wednesbury Corporation [1948] 1 KB 223 at 234 where the English Court of Appeal held that the judiciary would only interfere with an executive decision if it has ‘come to a conclusion so unreasonable that no reasonable authority could ever have come to it’. See EC Ip, ‘Taking a ‘‘Hard Look’’ at ‘‘Irrationality’’: Substantive Review of Administrative Discretion in the US and UK Supreme Courts’ (2014) Oxford Journal of Legal Studies 1 online.

78 See also Ip (n 77) 10 and H Woolf, De Smith’s Judicial Review (6th edn, Sweet & Maxwell, London, 2007) 551.

79 J Goodwin, ‘The Last Defence of Wednesbury’ (2012) PL 454.

80 Sager, LG, Justice in Plain Clothes: A Theory of American Constitutional Practice (Yale University Press, New Haven, CT, 2004) 86.

81 Roosevelt, K III, ‘Aspiration and Underenforcement’ (2006) 119 Harvard Law Review 193.

82 See also Young, A, ‘In Defence of Due Deference’ (2009) 72(4) MLR 554.

83 See Rivers, J, ‘Proportionality and Variable Intensity of Review’ (2006) 65(1) CLJ 174.

84 (1997) AIR (SC) 1125.

85 See art 323A(2)(d) and art 323B(3)(d) of the Indian Constitution.

86 (1987) SCR (1) 879.

87 Ibid at 888.

88 Strauss, D, ‘The Ubiquity of Prophylactic Rules’ (1988) 5 University of Chicago Law Review 193.

89 R Albert, ‘Nonconstitutional Amendments’ (2009) 22(5) Canadian Journal of Law and Jurisprudence 45.

90 J Rubenfeld, Freedom and Time: A Theory of Self Government (Yale University Press, New Haven, CT, 2001) 175.

91 One may note that while a public referendum mechanism is not provided for under the United States Constitution, three-quarters of the states must ratify any constitutional amendment before it can take effect. For this highly onerous threshold to be satisfied in such a heterogeneous country like America, the general public can be presumed to have implicitly approved of any such formalized change.

92 S Issacharoff, ‘Constitutional Courts and Democratic Hedging’ (2000) 99(4) Georgetown Law Journal 1002.

93 It is noteworthy that the Federal Court of Malaysia, the nation’s highest court, has recently recognized this implied basic structure doctrine. See Sivarasa Rasiah v Badan Peguam Malaysia [2010] 2 MLJ 33 at [8]. On the other hand, the Singapore Court of Appeal in Teo Soh Lung v Minister of Home Affairs (1990) 2 MLJ 129 at [44] and the Constitutional Court of South Africa in United Democratic Movement v President of the Republic of South Africa, 2002 (11) BCLR 1179 at [16]–[17], have held that it was unnecessary to decide whether this doctrine applied in their countries.

94 Issacharoff (n 92) 1002.

95 Vile (n 39) 211.

96 Albert (n 89) 44.

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