Unconstitutional Constitutional Amendments Research Articles

Judicial self-empowerment and unconstitutional constitutional amendments

Abstract In the context of global judicial aggrandizement, many courts have developed and accepted the unconstitutional constitutional amendments doctrine. However, with the exception of some case studies, there is little comparative scholarship on the causes of judicial expansion in this area. This article addresses this gap by examining the development of the power to review amendments in three constitutional systems: Colombia, India, and Malaysia. The article argues that in all three cases, one of the important elements that contributed to the consolidation of this power is the strategic behavior of courts. To understand the importance of strategy, the article suggests a rational choice theory of judicial empowerment, according to which judges estimate the costs of potential backlashes and act in certain moments and in certain ways so as to make political reaction unlikely. It further suggests three different types of strategies utilized by these courts that helped curb political backlash. First, courts engaged in timing strategies: they decided the scope of their own power when political competition was high and the likelihood of backlash was low. Second, courts engaged in outcome strategies: they expanded their own power while simultaneously giving the dominant political coalition a “win.” Third, courts employed case selection strategies: they picked mundane and low-stake cases in order to decrease the incentives for political reaction. The article concludes with some considerations on the limits of judicial strategy.

The Unconstitutionality of Unconstitutional Constitutional Amendments

The Unconstitutionality of Unconstitutional Constitutional Amendments

Abusive Unconstitutional Constitutional Amendments: Indonesia, the Pancasila and the Spectre of Authoritarianism

Abstract This article explores how an unconstitutional constitutional amendments doctrine could be abused to advance an illiberal or even authoritarian agenda, with Indonesia as a case study. In Indonesia, there is a pervasive belief that the five fundamental principles of the state (the Pancasila) are the ‘basic norm’ of the Indonesian legal order. Based on this understanding, it has been argued that all positive laws, including constitutional amendments, must be consistent with the Pancasila. At the same time, there is a danger lurking behind this idea. The four amendments to the 1945 Constitution, which have ushered in a new era of democracy, have been claimed to be repugnant to the Pancasila. Consequently, a future authoritarian president could invoke this doctrine to revert to the original 1945 Constitution, which has enabled two authoritarian regimes in the past. Nevertheless, this threat could be minimised by applying the concepts of constituent and constituted powers.

Peran Mahkamah Konstitusi Mencegah Gejala Autocratic Legalism di Indonesia

The phenomenon of autocratic legalism has become a serious problem that threatens democracy. As the guardian of constitution, the Constitutional Court should be present to stop the spread of this phenomenon. This research has two objectives, first, to understand the autocratic legalism phenomenon and the spread of it. Second, to formulate what kind of role the Constitutional Court can play to stop the escalation of it. The research methods used are doctrinal. The results showed, firstly, autocratic legalism refers to the actions of a person who uses the law to legitimize his desire for power. This can be seen in several policies issued in Indonesia. Second, the way the Constitutional Court can stop the escalation of it by adopting the doctrine of unconstitutional constitutional amendment and judicial activism in the exercise of judicial review.

Pacifying the Crises of (Un)Constitutional Amendments: The Case of Zimbabwe’s Amendment (No.1) and (No.2) Acts

Zimbabwe enacted a new constitution in 2013 amid high hopes for a turn towards a new era of democratisation, constitutionalism, and adherence to the rule of law. However, subsequent to 2013, Zimbabwe entered an era of regression on the democratic values espoused by the new constitution. The apogee of the regression is the amendments of the Constitution, neutralising some of its most progressive elements. This paper analyses two recent constitutional amendments: amendments no. 1 and no.2, in the Zimbabwean context pertaining to judicial appointments and terms of office. It also evaluates the potential of judicial review of substantive validity of constitutional amendments through the lens of the doctrine of ‘unconstitutional constitutional amendments’. This is in defence of core constitutional values such as equal protection of the law, rule of law, separation of powers, and democratic participation. The central argument of this paper is that the amendments, which contravene the values espoused by the Constitution, are substantively unconstitutional because they precipitate a multi-pronged crisis of constitutionalism. These crises are embodied in the indirect control of the judiciary by the executive, and in ‘rule by law’ replacing ‘rule of law’. This article proposes that these crises can be remedied by exploring the doctrine of unconstitutional constitutional amendments.

An Election Postponement as a Change of the Constitution: Its Democratic and Constitutional Implications

ABSTRACT The impact of the COVID-19 pandemic on a possible postponement of the 2021 South African local government elections is analysed. The question was whether a court of law could constitutionally postpone the election and if so, would such a postponement constitute a legal amendment of the Constitution? In a brief literature review, four themes were identified, namely the ‘unamendability’ of a constitution, unconstitutional constitutional amendments, the ‘basic structure’ of constitutions’ doctrine and the ‘implicit limitations’ on amendments doctrine. The Electoral Commission of SA appointed the Moseneke inquiry for advice on whether the election will be free and fair while subject to the pandemic regulations. It recommended an election postponement beyond the constitutional time-limits which was tested by the Constitutional Court. The Court did not allow for a postponement but insisted on additional voter registrations. The conclusions are that the judiciary regarded ‘regular elections’ as a more binding constitutional principle than ‘free and fair elections’. Judicial amendments of the Constitution would be possible only in exceptional cases, which excluded the pandemic. The positive public perceptions about the election are qualified by a lower voter turnout, which results in compromising the quality of South Africa’s democracy, but only temporarily.

The Law and Politics of Unconstitutional Constitutional Amendments in Asia by Rehan Abeyratne & Ngoc Son Bui Abingdon, Oxon; New York, NY: Routledge, 2022. 318 pp. Hardcover: £120.00

The Law and Politics of Unconstitutional Constitutional Amendments in Asia by Rehan Abeyratne & Ngoc Son Bui Abingdon, Oxon; New York, NY: Routledge, 2022. 318 pp. Hardcover: £120.00 - Volume 17 Issue 2

Unconstitutional Constitutional Amendments and the Stratification of Powers

The subject of the article is the idea of unconstitutional constitutional amendments. The essay does not concern any specific legal order but takes the perspective of a general theory/philosophy of law. The study is divided into two parts. The first part briefly describes the theory and practice of applying the idea of unconstitutional constitutional amendments. The second part reveals and analyzes the basic assumptions of the theory of unconstitutional constitutional amendments: “the assumption of the stratification of powers” and “the essentialist assumption.” As a result of the analysis, it is concluded that on the grounds of democracy and constitutionalism the inadmissibility of amendments to the constitution should be linked not to the difference between the establishment of the constitution and its amendment, but to the difference between the degree of democratic legitimacy of the indicated law-making activities. Therefore, the article also formulates a postulate that the admissibility of declaring the unconstitutionality of constitutional amendments should be limited to cases where the amendments were adopted in a procedure with an evidently lower degree of democratic legitimacy.

Unconstitutional constitutional amendment or constitutional dismemberment? A reappraisal of the presidential term limit amendment in Cameroon

AbstractPresidential term limit provisions are often perceived as a feature of modern democratic systems. It has been argued that their existence is a key intervention mechanism to pre-empt some undemocratic outcomes associated with incumbency advantages. In 2008, the Constitution of Cameroon was amended to abolish the presidential term limit. More than ten years on, there are ostensible signs of a democratic decline. This article takes a retrospective look at the constitutional amendment to assess its constitutionality. It is argued that a conclusion on the constitutionality of the amendment may not be unequivocal. Nevertheless, there are substantial grounds for considering the constitutional change as a constitutional dismemberment. This is premised on the fact that, although the amendment followed the normal rules for constitutional amendments, the transformation amounted to a fundamental break with the constitutional commitment to democracy that underpinned the adoption of the 1996 Constitution.

“With a little help from the people”: Actio popularis and the politics of judicial review of constitutional amendments in Colombia 1955–90

Abstract This article examines the reasons behind the consolidation of the Supreme Court of Colombia’s authority during the second half of the twentieth century as the ultimate umpire of amendments’ constitutionality. After analyzing the case law of the Supreme Court between 1955 and 1990 and the political environment in which it rendered its decisions, the article claims that the Court managed to cement its power to review amendments thanks to the presence of a novel constitutional experiment, as well as to the existence of certain political conditions. With respect to the first factor, an actio popularis (by which any citizen had the right to petition the Court and challenge the constitutionality of legislation) granted the Supreme Court a constant flow of cases that allowed it to entertain and adjudicate on citizens’ petitions questioning the constitutionality of amendments. Regarding the latter factor, democracy and political pluralism gave the Court some room to quietly consolidate its jurisdiction to review amendments and, eventually, quash some of them. The article concludes with a cautionary note on the success of actio popularis and the doctrine of unconstitutional constitutional amendments as deployed by the Supreme Court.

Judicial Observations over the Doctrine of Unconstitutional Constitutional Amendment in Pakistan: A Critical Appraisal

The legal fraternity and some political parties around the country challenged the twenty-first constitutional amendment, enacted by the Parliament of Pakistan. The petitioners contended that the Legislature amended the basic features of the Pakistan Constitution beyond its scope of amending power and liable to be declared unconstitutional. However, some of the judges of the apex Court of Pakistan adopted the former judicial approach. They ruled that the apex court had no authority to annul any amendment when it became a formal part of 1973’sConstitution. The apex court further stated that the impugned amendment might be taken under consideration if it was found that the required constitutional procedure for amendment did not comply with it. This research aims to critically analyze observations of the apex court about examining the constitutional amendment on the yardstick of repugnancy with the basic features of the Constitution of Pakistan. For achieving the proposed objective, this study adopts a doctrinal research method. It carries out an in-depth analysis from the perspective of modern Constitutionalism, juristic literature, and judgments of the superior courts of various States to support the study.

Why There? Explanatory Theories and Institutional Features Behind Unconstitutional Constitutional Amendments in Asia

This chapter reflects on the various chapters of the book. In so doing, it proposes numerous alternative and mutually reinforcing theories behind the adoption of the unconstitutional constitutional amendment doctrine in Asia: higher law background; correcting flaws in the democratic process; political and policy insurance and hegemonic preservation. It also reviews the recent debates in Israel, and suggests various institutional features that can explain why doctrines of implied limitations on constituent power, such as the Basic Structure Doctrine, were developed in specific jurisdictions: flexibility of the amendment procedure, party or executive dominance; the political and amendment culture, and the absence of effective supra-national institutions.

Populism, Liberal Democracy, and Constitutionalism: An Unholy Trinity

The new plague facing liberal democracy is authoritarian populist projects. Scholars have been grappling with discovering answers on how to safeguard liberal democracy in the face of authoritarian populist projects. Much of the legal academic discourse concerning the same has been centered around constitutional law innovations like unconstitutional constitutional amendments, revision clauses, defensive/militant democracy, or institutional mechanisms such as judicial institutions. Nonetheless, these tools have largely been unsuccessful in stopping or even halting authoritarian populist projects. This article will argue that authoritarian populist projects can ultimately only be prevented in the political arena and the electoral battleground. This can happen when united opposition forces either utilize their institutional leverages efficiently and impede authoritarian populist projects or win elections and prevent the re-emergence of populist autocrats. This article will also make the ambitious claim that in countries susceptible to populism, to prevent authoritarian populist projects, ultimately, authoritarian populist projects might need to be countered with tools from the populist toolkit in ways that capture people the populace’s imagination in the same way as authoritarian populist projects.

Judicial Self-Dealing and Unconstitutional Constitutional Amendments in South Asia

Courts around the world today are empowered to strike down unconstitutional constitutional amendments. But can a court strike down amendments that restore parts of the original constitution? The Appellate Division of the Bangladesh Supreme Court did precisely this in Bangladesh v. Asaduzzaman Siddiqui (2017), holding unconstitutional an amendment that restored the judicial removal provision that existed in the original 1972 Constitution. This article analyzes Siddiqui within the comparative constitutional amendment literature and the broader South Asian context. Despite the apparent incongruity of applying the basic structure doctrine to an original constitutional provision, we argue that Siddiqui is defensible on both theoretical and pragmatic grounds. The amendment that was invalidated in this case represented an unconstitutional departure from the judicial removal practice that had existed for several decades and was entrenched by a previous amendment, which “dismembered” the original constitution and safeguarded constitutional democracy in Bangladesh. At a regional level, Siddiqui is similar to recent judgments in India and Pakistan in which apex courts assert their control and limit political influence in judicial appointment and removal proceedings. Such judicial self-dealing, we argue, is more justified in Bangladesh and Pakistan than in India due to their checkered histories with democracy and political interference with judicial functions.

Judicial self-dealing and unconstitutional constitutional amendments in South Asia

Abstract Courts around the world today are empowered to strike down unconstitutional constitutional amendments. But can a court strike down amendments that restore parts of the original constitution? The Appellate Division of the Bangladesh Supreme Court did precisely this in Bangladesh v. Asaduzzaman Siddiqui (2017), holding unconstitutional an amendment that restored the judicial removal provision that existed in the original 1972 Constitution. This article analyzes Siddiqui within the comparative constitutional amendment literature and the broader South Asian context. Despite the apparent incongruity of applying the basic structure doctrine to an original constitutional provision, we argue that Siddiqui is defensible on both theoretical and pragmatic grounds. The amendment that was invalidated in this case represented an unconstitutional departure from the judicial removal practice that had existed for several decades and was entrenched by a previous amendment, which “dismembered” the original constitution and safeguarded constitutional democracy in Bangladesh. At a regional level, Siddiqui is similar to recent judgments in India and Pakistan in which apex courts assert their control and limit political influence in judicial appointment and removal proceedings. Such judicial self-dealing, we argue, is more justified in Bangladesh and Pakistan than in India due to their checkered histories with democracy and political interference with judicial functions.

Critical Analysis of the Constitutional Amendment Bill 2020 (BBI) in Relation to the Doctrine of the Basic Structure of the Constitution and the Doctrine of Unconstitutional Constitutional Amendments: What Is the Bills Effect on the ‘Immutable’ or ‘Eternal’ Clauses in the Constitution?

This paper seeks to put to test the Constitutional Amendment Bill of 2020 dubbed BBI, by subjecting it to the lenses of the doctrine of the basic structure of the constitution and the principle of unconstitutional constitutional amendments.

(Un)Constitutional Amendments and Cameroon Constitutions: Strange Bedfellows with the Rule of Law and Constitutionalism

The article examines unconstitutional constitutional amendments in the constitutional order of Cameroon dating back from 1960 to 2008. The examination reveals that all the amendments engaged within this period fail to comply with the rule of law and constitutionalism, facilitated and abetted by the three branches of government in Cameroon. The article ends by emphasising that since power is held by government only as a trust for the benefit of the people, it entails that constitutional amendments should be undertaken only when they are in the interests of the people who are the ultimate beneficiaries of the trust.

שמירת הדינים – יחסינו לאן? על עתידה של שמירת הדינים בדין הישראלי <br>The Future of the "Validity of Laws" Clause in Israel's Basic Law: Human Dignity and Liberty

תקציר בעברית: המאמר מבקש להתמודד עם הבעיות שנובעות מפסקת שמירת הדינים בחוק יסוד: כבוד האדם וחירותו. המשמעות המעשית של שמירת הדינים היא הענקת פטור למחוקק מפני ביטול חקיקה ישנה לאור סתירתה להוראות חוק היסוד. אמנם, שמירת הדינים התקבלה תוך פשרה פוליטית נחוצה, אך על אף שהפשרה עסקה בנושאי חקיקה מסויימים, שמירת הדינים שהתקבלה היא גורפת ומגנה על הדין הישן כולו. בפועל, כל עוד שמירת הדינים לא בוטלה, גם בעוד חמישה עשורים מהיום לא ניתן יהיה לבחון באופן חוקתי אף דין שחוקק לפני מרץ 1992, ובמסגרת זו אף פקודות שנחקקו על ידי המשטר המנדטורי עוד לפני קום המדינה. תוצאה זו פוגעת בהתפתחות הטבעית של המשפט, בהרמוניה המשפטית בין מערכת הדינים הישנה והחדשה, וביכולת של הרשות השופטת לפקח על הרשות המחוקקת כחלק מהפרדת הרשויות. בעיה זו מתעצמת לאור העובדה שהכנסת משמשת הן כרשות מחוקקת והן כרשות מכוננת, ובשל כך נעדרת תמריץ לבטל את שמירת הדינים מחד גיסא, ולתקן חקיקה ישנה בעייתית מאידך גיסא. במאמר מוצגים שלושה פתרונות אפשריים שניתן ליישם על מנת לאפשר בחינה חוקתית של הדין הישן, שמוגן כיום על ידי שמירת הדינים. ראשית, יישום פרשנות תכליתית מחודשת לשמירת הדינים, כך שתחול רק על חקיקה בנושאים מסויימים (דת ומדינה, זהותה היהודית של המדינה וביטחון). פרשנות זו תאפשר בחינה חוקתית של דינים ישנים אחרים, שאינם קשורים לנושאים אלו. שנית, בחינת הדין הישן לאור עקרונות היסוד של השיטה והאופן בו פותחו במהלך השנים בבית המשפט העליון. לבסוף, ביטול שמירת הדינים עצמה על ידי דוקטרינת התיקון החוקתי הבלתי חוקתי. English Abstract: The article seeks to address the problems arising from the Validity of Laws clause of the Israeli's Basic Law: Human Dignity and Liberty. The practical meaning of the clause is to grant a exemption to the legislature against the repeal of old legislation in light of its contradiction to the provisions of the Basic Law. Admittedly, the clause was accepted with the necessary political compromise, but although the compromise dealt with certain matters of legislation (mainly separation of state and religion), the clause obtained was across-the-board and protected the entire of the existing law. In practice, as long as the clause exsits, it will not be possible to constitutionally examine any law enacted before the Basic Law was passed (in March 1992). This result impairs the natural development of the law, the legal harmony between the old and the new legal system, and the ability of the judiciary to oversee the legislature as part of the separation of powers. This problem is exacerbated by the fact that the Knesset serves as both a legislative and constitutive authority, and therefore lacks an incentive to repeal the clause on the one hand, and amend problematic old legislation on the other. The article presents three possible solutions that can be implemented to allow for a constitutional examination of the old law, which is currently protected by the clause. First, the application of a renewed interpretation of the clause, so that it will apply only to legislation on certain issues (religion and state, the Jewish identity of the state etc.). This interpretation will allow for a constitutional examination of other old laws, unrelated to these issues. Second, an examination of the old law in light of the basic principles of the legal system and the way in which they have been developed over the years in the Supreme Court of Justice. Finally, complete abolition of the clause itself by the doctrine of unconstitutional constitutional amendments.

The causes and consequences of a judicialized peace process in Colombia

Abstract This article focuses on one striking feature of the Colombian peace process with the Revolutionary Armed Forces of Colombia—People’s Army (FARC): a very high level of judicialization, as shown through the many decisions issued by the Colombian Constitutional Court that have examined core elements of the process. It argues that this high level of judicialization is explained not only by the generally activist role conception of the Court, but also by specific doctrines it developed, including a robust incorporation of international law and an unconstitutional constitutional amendment doctrine, which essentially made judicialization inevitable. Since these doctrinal devices are spreading, they may portend increasingly judicialized peace processes in other countries as well. Normatively, judicialization of ongoing peace processes raises clear risks, particularly of destabilization. But for the most part, the Colombian Constitutional Court has avoided these risks and instead has stabilized the process in important ways, by insulating it from both international pressure and domestic political shifts. The Court has also injected important values into the process, especially regarding the rights of victims of the internal armed conflict. Thus, the case study demonstrates that at least under certain conditions, judicialization may have a beneficial impact on the substance and durability of peace processes.

Disaggregating dismemberment: nullity, natality, and the hollowing of constitutional renewal in designed written constitutionalism

This paper aims to rethink the idea of constitutional renewal through a dissection of Richard Albert’s ground-breaking concept of constitutional dismemberment. It is contended that under the rubric of constitutional dismemberment are two exceptional constitutional phenomena: the ought-to-be declared nullity of unconstitutional constitutional amendments and the legal unity-defying, extraconstitutional expression of what Hannah Arendt called “natality” in political action. The thesis is that attempts to tame revolutionary constitutional alteration with designed rules as to formal constitutional change as Albert’s illustrates are missing the meaning of constitution-making for a natality-driven constitutional renewal characteristically defies designed constitutional form. The concept of constitutional dismemberment is first dissected in light of Arendt’s idea of natality. With constitutional dismemberment unpacked, it is further observed that the constitution-making transmutes into the formal pronouncement of a new codified constitution in Albert’s rigid tripartite classification of constitutional changes into amendment, dismemberment, and enactment. Albert therefore inadvertently reduces constitution-making to the formal enactment of a new codified constitution with constitutional natality dismembered and constitutional renewal hollowed out. It is concluded that Albert’s formalistic conceptual framework of constitutional change reflects the centrality of comparative written constitutions in the place of comparative constitutional phenomena in current comparative constitutional studies.