A Need to Define Limits to Constitutional Change: Cross-Country Analysis

This article was written by Vatsal Shandilya, a student of NLIU, Bhopal. 

1. Introduction

The doctrine of implicit limits to the power of constitutional reform has been debated by many constitutional law theorists all around the world.[1] While there are many constitutions which have implicit in them the power to amend their text, there are near to no constitutions which provide in detail the limits thereto. It’s understandable thereby that some nations have formed judicial limits thereto, example is the basic structure doctrine innovated by the Indian Judiciary.

In the modern world of Constitutional Law there are no serious followers of the John Locke’s view that, “a Constitution should be the sacred and unalterable form and rule of government […] forever”. It can clearly be seen by looking at the rate at which the constitutions of different countries have changed with time. For instance, the German Basic Law of 1949 was modified on more than 50 occasions, the 1958 Constitution of the Fifth French Republic on 25 occasions, the 1937 Constitution of Ireland on 29 occasions , the Indian Constitution since its inception in 1950 have been amended more than 100 times and the 1978 Constitution of Spain only twice.[2]

It is to be noticed that the authority to amend the constitution does not include the authority to enact a new constitution, and with these argument it logically follows that we need some limits on the amending power of the authority, especially in the case of countries where constitution is easily amendable, so that those limits safeguard the constitution against the malign interest of the authority amending it.

1. Necessity of Amending Provision in the Constitution

Constitution is often referred to as an organic document, it has its own life. The provision to amend the constitution are made to provide the much needed flexibility to it, so that we can overcome any difficulty in future while working in line with it. The social, economic and political conditions of the people goes on changing so the constitutional law of the country must also change in order toward it to the changing needs, changing life of the people. If no provisions were made for amendment of the constitution, the people would have recourse to extra constitutional method like revolution to change the constitution.[3]

• Case for Limitations upon amending power

It is one of the crucial question of the constitutional law, whether to limit the constitutional amendment power or not. There are certain principles, institutions, rights and liberties or, as John Rawls calls them, ‘constitutional essentials,’ that must be and remain part of the Constitution, and may not be removed by means of the amending power.[4] The same was also reiterated by the Supreme Court of the India in 1973 while judicially innovating the Doctrine of the Basic Structure, in order to limit the change making power of the legislature to the constitution.[5]In discussing Article V of the U.S. Constitution and the role of the Supreme Court, Rawls argues that there are limits to what can be a valid constitutional amendment.[6] He supports the notion of Stephan Macedo, who in his writing states that, an amendment which sought to expunge that basic commitment and to wipe out basic political and personal freedoms intrinsic to reasonable self-government suggest a desire to revolutionize rather than correct and amend […] and so it would properly be held by the Supreme Court to be a nullity.[7]

The semantic meaning of the word ‘amend’ means correcting or improving, not deconstructing, reconstructing, or replacing and abandoning the fundamentalprinciples of the Constitution. Walter F. Murphy, supports the argument of both Rawls and Macedo. He states that, Any change that would transform the polity into a political system that was totalitarian, or even so authoritarian as not to allow a wide space for human freedom, would be illegitimate, no matter how pure the procedures and widespread the public support.[8]

There have been some scholars who have kept their reservation to the above matter. Richard Albert goes on to say that Unamendability clauses are objectionable as a matter of theory because they chill constitutional discourse and prevent reconsideration of the constitutional text, the very document that is the embodiment of a people’s nationhood and their vision for themselves and their state… unamendability clauses are supraconstitutional because only they limit the universe of constitutional possibilities that are open to the people.[9]To counter Murphy’s argument, Walter Dellinger also rejects the Supreme Court’s power to exercise judicial review of the substance of constitutional amendments: “Judicial review of themerits of proposed amendments is illegitimate for the simple reason that the Constitution places virtually no limits on the content of amendments.”[10]

The core question for the assessment after all the arguments remains unresolved, which is to what extent the power amending the constitution can be considered sovereign. The experiences of many countries including Germany and India, shows us that even if there is no explicit power given in the form of any provision in the constitution, the constitutional courts are empowered to judicially review the amendment without any authorization of constitution.[11]

On the other hand, when we look at some other countries such as Switzerland, explicit limits to the amendment power are present in the Constitution without judicial review. According to Articles 193(4), 194(2) of the 1999 Constitution, when there is a partial or even total revision of the Constitution, “The mandatory provisions of international law must not be violated.”[12]

1. Limits shows distrust upon the ruling

While supporting the limits to change one might also look at the other side of the coin. The high degree of rigidity in constitutional arrangements, is not only a reflection of distrust towards future framers of new Constitutions or those who might wish to amend the existing documents, but in the view of some, it is an outright interference with the sovereignty of future generations. Louis Michael Seidman forcefully asserts in the American Context that, the framers chose to assert authority over the generations hundreds of years later hardly justifies their following the old dictates.[13]

The Judiciary of countries such as Sri Lanka, Singapore and Malaysia, have often criticized the doctrine of basic structure innovated by the Indian judiciary. They have claimed that in the absence of any implicit limits in the constitution, there must not be any limit to the change in the constitution.

1. Conclusion

It is the suggestion of the author that there must be some kind of limits to the constitutional change, otherwise it is highly likely possible in any country that the majority rule will abuse the power in order to promote their malign interest. It is not any kind of distrust upon the future generation but the need of the regime to make the constitution stable.

[1]See for example Carlos Bernal, “Unconstitutional Constitutional Amendments in the Case Study of Colombia: An Analysis of the Justification and Meaning of the Constitutional Replacement Doctrine” (2013) 11 ICON 339

[2]See L. Garlicki& Z.A. Garlicka, ‘Review of Constitutionality of Unconstitutional Amendments (An Imperfect Response to Imperfection?)’, AnayasaHukukuDegrisi: Journal of Constitutional Law, Vol. 1, 2012, p. 185.

[3]Kesavananda Bharati v. State of Kerala, AIR 1973SC 1461

[4]See this question posed concerning Rawls’s idea of ‘constitutional essentials’ by C.A. Kelbey, ‘Are There Limits to Constitutional Change? Rawls on Comprehensive Doctrines, Unconstitutional Amendments, and the Basis of Equality’, Fordham Law Review, Vol. 72, 2004, pp. 1487-1536.

[5]Supra, at note 3.

[6] See J. Rawls, Political Liberalism, 2nd edn, Columbia University Press, New York, 1996, p. 231.

[7] S. Macedo, Liberal Virtues: Citizenship, Virtue, and Community in Liberal Constitutionalism, Clarendon Press, Oxford, 1990, p. 183, n. 116.

[8] See Murphy, 1995, p. 179

[9]  R. Albert, ’Counterconstitutionalism’, Dalhousie L. J., Vol. 31. 2008, p. 47-48.

[10] W. Dellinger, ‘Constitutional Politics: A Rejoinder’, Harvard Law Review, Vol. 97, 1983, pp. 447448

[11] As Aharon Barak observes, the silence of the Constitutions of Germany, Austria and Turkey (until 1971) regarding the court’s authority to examine constitutionality of an amendment to the Constitution did not lead the Constitutional Courts of those countries to conclude that they do not have such authority. See A. Barak, ‘Unconstitutional Constitutional Amendments’, in H.G. Schemers & D.F. Waelbroeck (Eds.), Judicial Protection in the European Union, 6th edn, Kluwer, The Hague, 2001, p. 736.

[12] As opposed to amendments, total or partial revisions are reserved for a change that affects the most important constitutional structures or arrangements and cannot be adopted without following very demanding procedural requirements. See G. Biaggini, ‘Switzerland’, in D. Oliver & C. Fusaro (Eds.), How Constitutions Change – A Comparative Study, Hart Publishing, Oxford, 2011, pp. 316-317

[13]L.M. Seidman, On Constitutional Disobedience, Oxford University Press, Oxford, 2013