Difference between original constituent powers and derivative constituent powers

A common justification for advocating that a constitutional amendment may be inconsistent with certain implicit ‘basic features’ of a constitution is premised on a normative distinction drawn between the creation of a constitution by a Constituent Assembly and the amending power vested in a constituted body that is derived from the constitution. Constitutional theorists, like Carl Schmitt and Emmanuel Sieyès, have argued that the former power of creation is plenary and it is subjected to no legal constraints, while the latter power of amendment is merely a derivative power or constituted power and may not be exercised to alter any fundamental features of the constitution.^{Footnote 2} The decision to make fundamental changes to the constitution is a matter solely reserved for the Constituent Assembly; ergo, judges may invalidate any exercises of the derivative amendment power that purport to violate the constitution’s basic features.

This distinction drawn between original constituent power and derivative constituent power has also been endorsed by judges when they render constitutional amendments unconstitutional.

In I.R. Coelho v State of Tamil Nadu,^{Footnote 3} the Supreme Court of India was faced with a challenge against the constitutionality of various agrarian laws that have been immunized from judicial invalidation. Specifically, Article 31B^{Footnote 4} of the Indian Constitution expressly provides that no laws specified in the Ninth Schedule of the Constitution shall be invalidated on the ground that it is inconsistent with any constitutionally protected rights, and the impugned laws had been inserted into the Ninth Schedule. Nevertheless, Chief Justice YK Sabharwal, on behalf of the unanimous Court, observed as follows:

According to his Lordship, the judicial recognition of an implied basic structure of the Indian Constitution is justified on the following basis:

In the same vein, the Appellate Division of the Supreme Court of Bangladesh in Anwar Hossain Chowdhury v Bangladesh,^{Footnote 7} by a majority of 3 to 1, invalidated a constitutional amendment that had created six additional Permanent Benches in different regions of the country that would possess the same powers and functions as the High Court Division of the Supreme Court. According to the majority, the judiciary was a ‘basic structural pillar’^{Footnote 8} of Bangladesh’s constitutional government and the creation of the new courts, parallel to the High Court Division, infringed upon the judicial powers vested in the High Court Division. As ‘the basic structural pillar, that is judiciary, has been destroyed and plenary judicial power of the Republic vested in the High Court Division has been taken away’,^{Footnote 9} the constitutional amendment that authorized such a fundamental change was invalidated.

In particular, Shahabuddin Ahmed J justified the invalidation of the constitutional amendment in the following terms:

The normative distinction drawn between the Constituent Assembly’s plenary constituent power and the amending body’s limited derivative power of revision is, however, not unproblematic as it is not plainly obvious why the amending body’s power to revise the original constitution does not also comprise of the right to change its fundamental features. First, where the original Constituent Assembly has explicitly established the procedures by which the constitution may be amended, and where it has not expressly imposed any substantive constraints on constitutional change, it is not self-evident why the original Constituent Assembly has not therein divested all of its amending powers to the future amending bodies. Scholars and jurists who defend an implied ‘basic features’ doctrine have merely asserted that the amending body’s power of constitutional revision is derivative. But, in making this assertion, they have in no way explained why the amending body has not inherited all powers of revision divested by the Constituent Assembly upon the completion of constitutional law-making process. Furthermore, as Carlos Bernal has asked rhetorically, ‘if the foundation of a constitution is only a contingent social fact, namely, the result of a political decision, why should it be impossible to change the essential elements of the constitution by means of another contingent social fact, that is, a political decision made by means of a constitutional amendment?’^{Footnote 11}

Amendment is not abrogation

Another argument often raised in favour of recognizing implied substantive limits on constitutional change is derived from a textual reading of the term ‘amendment’. As Professor Walter Murphy has observed:

In other words, the term constitutional ‘amendment’ suggests that the constitutional power of revision is limited to the making of more modest changes and corrections. Insofar as the amendment is seeking to destroy or to wholly transform the pre-existing constitution, the revision in question is in essence an abrogation of the constitution and not an amendment.

In Kesavananda Bharati v Kerala,^{Footnote 13} the Supreme Court of India, by a 7 to 6 majority, invalidated a part of the 25th Amendment to the Indian Constitution, which provided that any law passed with a declaration that it was intended to give effect to the Directive Principles on the state’s socio-economic policy could not be ‘called in question in any court on the ground that it does not give effect to such policy’. The majority judges argued that such an amendment attempted to oust judicial review and thus violated an implied ‘essential feature’ of the Indian Constitution, and was therefore unconstitutional. More importantly, various justices in the Kesavananda majority justified their conclusion on a textual understanding of the term ‘amendment’. In particular Reddy J had so observed:

Echoing Reddy J, Khanna J in Kesavananda had advanced a similar textual argument against an expansive reading of the legislature’s right to amend the Indian Constitution pursuant to Article 168:^{Footnote 15}

In the same vein, when the Supreme Court of India, in Minerva Mills v Union of India,^{Footnote 17} unanimously invalidated Article 368(4) of the Indian Constitution,^{Footnote 18} which was inserted by the 42th Amendment, the Court observed as follows:

In essence, the jurists were arguing that the constitutional framers’ deliberate choice to use the term ‘amend’ or ‘amendment’ in a constitution suggests that any constitutional change must be more modest and cannot be so drastic as to constitute its destruction, repeal or abrogation. This textual argument may be compelling in instances where the constitution in question does not expressly define the meaning of the word ‘amend’; and recourse to an ordinary/dictionary understanding of the term ‘amend’ may therefore shed light on the framers’ intended meaning. However, one may note that in Bangladesh and India, where their judges have imposed implied substantive limits on constitutional change, their constitutions expressly define the scope of the term ‘amendment’ very broadly. Article 142 of the Bangladesh Constitution reads: ‘Notwithstanding anything contained in this Constitution … any provision thereof may be amended by way of addition, alteration, substitution or repeal’ (emphasis added). Article 368(1) of the Indian Constitution, as amended by the 24th Constitutional Amendment,^{Footnote 20} is similarly worded: ‘Notwithstanding anything in this Constitution, Parliament may in exercise of its constituent power amend by way of addition, variation or repeal any provision of this Constitution in accordance with the procedure laid down in this article’ (emphasis added). Therefore, in such instances where the constitution explicitly authorizes the repeal of any of its provisions via the amendment process, the textual argument in favour of giving a narrow reading to the word ‘amend’ loses its force.^{Footnote 21}

Prevent amendments that seek to abolish democracy and fundamental rights

Finally, one may argue that there must be implied substantive limits placed on constitutional changes or the constitution’s amending body would otherwise be legally authorized to abridge all fundamental freedoms or remove all vestiges of democracy within the state. In other words, the implied ‘essential features’ doctrine is needed as a safeguard against abuse by the amending body and to prevent a country from establishing totalitarianism such that all cherished democratic principles may be rendered non-existent.

As observed by Professor Walter Murphy:

In the same vein, David Landau has discussed how the doctrine of unconstitutional constitutional amendments has been conceived as a response to the practice of ‘abusive constitutionalism’,^{Footnote 23} i.e. the politicians’ use of mechanisms of formal constitutional change to make a state significantly less democratic than it was before.^{Footnote 24}

The Constitutional Court of Colombia has been also explicit about this implicit limit to the amending power:

To this extent, it would be understandable if one is sympathetic to the Colombian Constitutional Court for invalidating a constitutional amendment that would have allowed the incumbent President Alvaro Uribe Velez to run for a third consecutive term in office, which would have given him the power to virtually appoint all officials that were supposed to be checking him,^{Footnote 26} or the Supreme Court of Bangladesh (Appellate Division) for invalidating the 5th Amendment^{Footnote 27} and the 7th Amendment^{Footnote 28} to the Bangladesh Constitution, which had imposed martial law on the country over separate extended periods of time.

Jurists that argue in favour of recognizing implied substantive limits on constitutional change may suggest that the rule of law encapsulates a substantive ideal, which serves as the anvil on which the propriety of constitutional amendments is tested. Nevertheless, the trouble with this elusive rule of law ideal is not that people will disagree with its normative force in the abstract but that this higher-order law, if enforceable, must be given substance, be interpreted, and be applied.^{Footnote 29} The appeal to a divine ideal may be irresistible but the devil is in the details. Judges do not uphold the rule of law in the abstract but have to apply sacrosanct constitutional rights to specific and particularized facts that come before them.^{Footnote 30} Does the fundamental right to free speech exclude any attempts to use a constitutional amendment to ban hate speech inciting violence against racial or sexual minorities? Does the fundamental right to equality exclude all forms and varieties of race-based affirmative action programmes that the constitutional amending body may want insulated from a constitutional challenge? The rule of law is a vague, contestable ideal and is consistent with a variety of understandings and institutional arrangements.^{Footnote 31} As Professor RG Wright has argued, once a fundamental rights norm is sufficiently particularized to specific facts to be constitutionally useful, ‘it is no longer clear why an amendment must be unconstitutional if, for example, it limits the protection or advancement of one conception of human dignity for the sake of some other equally plausible conception of human dignity’.^{Footnote 32}

Furthermore, there is evidence that this implied basic structure doctrine has tended to expand through time as courts find more parts of the constitution to be basic, and it would seem that this doctrine is also used (or abused) by the judiciary for turf-protection purposes.^{Footnote 33} For example, the Colombian Constitutional Court has recently suggested that a legislative attempt to recriminalize drug possession, following a judicial decision that decriminalized it, would likely be an unauthorized act of constitutional substitution as this would violate core values pertaining to human dignity and autonomy.^{Footnote 34}

Ergo, if scholars are right that judges should recognize that certain implied ‘basic features’ of the constitution are inviolable, such that fundamental rights may never be abrogated, they must subsequently go on to demonstrate why the judges’ perception of human dignity in every concrete context would always be superior to the amending body’s conception each time. But, unfortunately, sympathizers of the implied ‘basic features’ doctrine have never proceeded to make their case in support of the latter proposition.

Identifying implied ‘basic features’ is to mull over imponderables

On the other hand, scholars who are sceptical about the judicial identification of a constitution’s implied ‘essential features’ would point to the sheer impossibility of determining these fundamental norms in an objective, value-neutral way. Given that the texts of such constitutions are silent on which features are so basic or fundamental that they are beyond abrogation, any list of such norms are open to debate and ‘cannot be objectively deduced or passively discerned in a viewpoint-free way’.^{Footnote 35}

Even in the Indian case of Kesavananda where the majority on the Supreme Court first recognized an implied ‘essential features’ of the Indian Constitution, the judges were not unanimous on which elements would constitute its basic structure. In particular, Khanna J, unlike his other six colleagues in the Kesavananda majority, did not regard the right to property as forming part of the inviolable implied basic elements of the Indian Constitution.^{Footnote 36}

The difficulty of identifying what exactly are the implied ‘essential features’ of a constitution was most astutely pointed out by Ray J in his dissenting opinion in Kesavananda:

Ray J’s objection is fair and is premised on the argument that the court’s exercise of judicial review must appeal to and draw support from the constitutional text it is interpreting. But one must concede that most, if not all, constitutional instruments enshrine abstract, open-textured rights that are often open to a multitude of interpretations in specific contexts, and that textualism alone cannot resolve this interpretive conundrum. In other words, even when courts invalidate ordinary legislation for violating open-textured constitutional rights, there may not be a specific textual mandate for a particular result. Therefore, the indeterminacy associated with ‘judicial line-drawing’^{Footnote 38} is inherent in all forms of constitutional adjudication and is not unique only to the judicial review of constitutional amendments.

Judicial invalidation of constitutional amendments undermines the people’s will

Furthermore, sceptics would argue that the judicial invalidation of constitutional amendments would gravely ‘threaten the notion of a government founded on the consent of the governed’.^{Footnote 39} This view has been most robustly advanced by the Supreme Court of Ireland, which has consistently rejected any implied substantive limits on constitutional change.

In Riordan v An Taoiseach (No 2),^{Footnote 40} the Supreme Court of Ireland had to address whether Section 7(3)^{Footnote 41} of the 19th Amendment to the Irish Constitution, which provided that the said Amendment would come into force when the Belfast Agreement of 1998 took effect, was repugnant to the Constitution. Barrington J, on behalf of the unanimous Court, was emphatic that the judicial invalidation of constitutional amendments in such circumstances would be impermissible:

Where the people’s will has been expressed in the form of a constitutional amendment, the constraint on courts to give effect to this revision should be a very strong one. If the judiciary is allowed to independently pass judgment on the merits of constitutional amendments in such circumstances, it would ultimately be subordinating the amendment process to the constitutional status quo the people had intended to override expressly. So far as a handful of unelected judges is empowered, under the guise of a nebulous ‘essential features’ doctrine, to thwart constitutional changes authorized by the people, the integrity of a constitutional structure committed to democracy would be gravely threatened.^{Footnote 43}

However, one must note that whether a constitutional amendment is reflective of the people’s will is dependent on the procedure by which the amendment is passed in that jurisdiction. Irish judges can rightly appeal to the people’s will as a constitutional amendment can only be passed in Ireland if it is endorsed by a majority vote in a referendum.^{Footnote 44} Similarly, in the United States, where a constitutional amendment may only be effected if it is proposed by two-thirds of both Houses of Congress (or two-thirds of states) and ratified by three-quarters of the states, that amendment would need to have the overwhelming support of the American electorate before it can be successfully passed.^{Footnote 45}

The same argument, however, cannot be made for constitutions where amendments can be unilaterally achieved by the ruling government of the day. Inevitably, to appreciate this, one must take into account the constitutional politics and the institutional context of the state in question.

For example, in India, amendments to most provisions in its Constitution, including enshrined fundamental rights, can be passed so long as they receive the support in ‘each House [of Parliament] 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’.^{Footnote 46} In other words, so long as the ruling government in India has majority control over both Houses of Parliament, it can pass a constitutional amendment to abridge fundamental rights, even if the people does not support this measure. The ‘basic structure’ doctrine was first conceived and developed as a judicial response to the legislative excesses of the Indira Gandhi government, which had relied on a supine Parliament to effect constitutional changes that the ‘hyper-executive’ government unilaterally wanted. Following a landslide victory at the 1971 polls, the Congress Party headed by Indira Gandhi was able to pass constitutional amendments with remarkable ease. The 25th Amendment was passed to insulate Gandhi’s socialist policies from judicial review. In response to rising political unrests after 1973, a State of Emergency was imposed in 1975, which led to the suspension of fundamental rights and the detention of opposition politicians.^{Footnote 47} The Constitution was also amended several more times in quick succession.^{Footnote 48} Specifically, in response to a lower court’s finding that the Prime Minister had violated electoral laws and was disqualified from holding public office for six years, the 39th Amendment was passed to insulate the Prime Minister’s election from any judicial inquiry and render pending proceedings in respect of such elections null and void.^{Footnote 49} Furthermore, the 42th Amendment made nearly 60 significant changes to the Indian Constitution, which included an express ouster of judicial review over constitutional amendments.^{Footnote 50} The Indian judges were convinced that if they did not intervene, all vestiges of democracy in India would eventually be removed.^{Footnote 51}

For Colombia, the impugned constitutional amendment that authorized President Uribe to run for a third Presidential term, on its surface, may seem innocuous. But, within the institutional context of Colombia, this amendment would allow Uribe, upon election, to appoint all the officials that were supposed to check him and would have given him near-complete control over all aspects of the state, and it would be almost impossible to dislodge him after that.^{Footnote 52}

Similarly, in the Republic of China (Taiwan), prior to 2005, constitutional amendments could only be initiated and passed by the National Assembly, an unelected (and unpopular) legislative branch of government.^{Footnote 53} Therefore, when the Judicial Yuan (the Constitutional Court of Taiwan) invalidated a constitutional amendment enacted by the Assembly, which had sought to extend its own term of office by allowing political parties with seats in the Legislative Yuan (Taiwan’s primary legislative chamber) to ‘elect’ delegates to the said Assembly,^{Footnote 54} one cannot reasonably argue that such a judicial manoeuvre had undermined popular sovereignty. Of course, one may still query whether the Court was right to deem democracy and human rights protection as part of the implied ‘unchangeable provisions’^{Footnote 55} in the Republic of China Constitution, which would justify the invalidation of any constitutional amendment that violated these (judicially discerned) basic principles.^{Footnote 56}