Penn Undergraduate Law Journal
  • Home
  • About
    • Mission
    • Masthead
    • Faculty Advisory Board
    • Partner Journals
    • Sponsors
  • Submissions
  • Full Issues
  • The Roundtable
    • Pre-Law Corner
  • Events
  • Contact
    • Contact
    • Apply
    • FAQs
  • Home
  • About
    • Mission
    • Masthead
    • Faculty Advisory Board
    • Partner Journals
    • Sponsors
  • Submissions
  • Full Issues
  • The Roundtable
    • Pre-Law Corner
  • Events
  • Contact
    • Contact
    • Apply
    • FAQs

The Roundtable


Welcome to the Roundtable, a forum for incisive commentary and analysis
on cases and developments in law and the legal system.


INTERESTED IN wRITING FOR tHE rOUNDTABLE?

Tackling Unconstitutional Constitutional Amendments – Can a Transnational Principle Be the Solution?

2/21/2017

0 Comments

 
Picture
By Harshit Rai

Why do we need a constitution? This question is of fundamental importance to scholars and thinkers alike, involved in tracing the genesis of constitutional regimes all over the world. Answering the question however, is not as easy as raising it. The notion of Social Contract has stood out as the most significant paradigms in Western philosophical and legal theory. [1] Locke provided that men are essentially free and equal, refuting the argument that men were naturally subject to the will of the monarch. [2] However, prior to Locke, the notion that the king and his subjects are equally subject to the law was firmly established by the grant of “Magna Carta” in 1215. [3] Magna Carta was a symbol of defence against the tyranny of the government making it the edifice of English liberties and the cornerstone of the British Constitution. [4]

Over the course of time, certain societies have realized that there is a need of certain normative regulations which not only bound the society but also its rulers. These norms in several nations often take the form of written constitutions and their primary purpose is usually check tyrannical abuse of power and oppression.

Constitutional amendments are necessary features of democracies all over the world. A dynamic society requires that the constitution is changed with the changing needs of the society. However, amendments actuated by political motives have often been used to subvert democratic institutions and countries across the world are full of such instances.
In Turkey, President Tayyip Erdogan recently introduced a constitutional bill which will shift the governing authority from the Parliament to the President’s office.  The amendment seeks to create an executive presidency turning the office of Mr. Erdogan which is largely a ceremonial office into the prime seat of the government.The opposition to this amendment transferring executive authority from parliament to the president  claims it would establish a dictatorship under Mr. Erdogan. [5]


Unconstitutional amendments have often been used to undermine democracy in the continent of Africa. This includes term prolongation or father to son succession and manipulation of the political system by incumbents. Though several norms to check such unconstitutional changes have been inserted in the democratic framework they seem to be ineffective. [6] Statistics reveal that within 2000 to 2010, presidents of 132 counties have attempted to amend the constitution for extension of their incumbency.  Majority of parliamentarians have supported these bids to amend constitutions in these countries. Parliamentary proposals for extension of tenure in these countries have often sailed without hurdles.

In Namibia, for instance, 50 SWAPO members in the 72-seat National Assembly supported the bill to ensure smooth passage. In Tunisia, Ben Ali reportedly got almost 100 per cent support for the constitutional amendment, while Guelleh of Djibouti got backing from 59 MPs in the 63-seat parliament. [7]

This gives rise to a perplexing situation. How can a constitutional amendment, which is usually a constitutionally prescribed process which seeks to modify or alter a constitutional provision violate the constitution? Saying that any act which modifies the existing provision is unconstitutional would make every constitution impossible to change. A logical answer to this conundrum would be to say that there are certain core constitutional features which are so very sacrosanct that they are beyond the scope of the amending powers of the parliament.

The Supreme Court of India in its landmark judgement of Kesavananda Bharati v State of Kerala has held that the basic structure or essential features of its Constitution could not be altered or amended by the Parliament. Thus, an inherent limitation was placed on the amending power of the Parliament. The Kesavananda Case has stood out as the guardian of Indian democracy protecting it from unconstitutional attempts and political interests and will always occupy a hallowed place in India’s constitutional history. The basic structure doctrine as laid down in this case has spanned across boundaries gradually being recognised in several other nations.

The Supreme Court of Bangladesh has made express reference to the Kesevananda Case in Anwar Hossain Chowdhury v. Bangladesh expressly adopting the basic structure doctrine. Limited amenability of the constitution and preservation of Basic structure has also been recognised in Pakistan.[8]

Despite the fact that there is a paucity of case law in Africa relating to constitutional amendments, the Indian basic structure doctrine has been recognised and even adopted in several countries. Kenya, for instance, has accepted the approach. The South African Judiciary, in the case of Premier of KwaZulu-Natal v. President of the Republic of South Africa held that radically and fundamentally restructuring the constitution might not qualify as an amendment at all. [9] While there is no explicit legal limit on the amendment power in South East Asian Countries like South Korea, Japan and China scholarly writers in these countries have suggested that there are certain essential provisions of the constitution which cannot be amended.

The international trend is thus moving towards the gradual acceptance of the basic structure doctrine. A constitutional core has been identified by courts in Africa, Asia and Latin America a set of basic constitutional principles which form the constitutional identity and which cannot be abrogated through the constitutional amendment process.

A well-developed judicial doctrine of “unconstitutional constitutional amendment can be a necessary check on the abuse of constitutional amendment. A transnational constitutional principle built on the lines of the basic structure doctrine can serve the purpose. Universalisation of such a protective principle will, if not completely prevent, create an additional formidable hurdle in the path of unconstitutional constitutional amendments. If such a doctrine is raised to the level of a universally acceptable norm, its violation will constitute an identifiable wrong. Universal agreement between nations on this regard for accepting certain core features forming part of constitutional regimes across the world is significant in this regard.








1. Robert C Solomon, Introducing Philosophy: A Text with Integrated Readings (Oxford University Press(9th ed, 2008) 566.
2.Locke's Political Philosophy https://plato.stanford.edu/entries/locke-political/#ConPolOblEndGov
3. Claire Breay, Julian Harrison  Magna Carta: An Introduction http://www.bl.uk/magna-carta/articles/magna-carta-an-introduction#
4. Ibid
5.Emre Peker, 5 Things on Turkey’s Proposed Constitutional Amendments http://blogs.wsj.com/briefly/2016/12/11/5-things-on-turkeys-proposed-constitutional-amendments/
6. J. Shola Omotola, Unconstitutional changes of government in Africa, What implications for Democratic consolidation? http://nai.diva-portal.org/smash/get/diva2:478511/FULLTEXT01.pdf
7. Ibid
8.  Yaniv Roznai ,Unconstitutional Constitutional Amendments: A Study of the Nature and Limits of Constitutional Amendment Powers http://etheses.lse.ac.uk/915/1/Roznai_Unconstitutional-constitutional-amendments.pdf


9. Ibid

The opinions and views expressed through this publication are the opinions of the designated authors and do not reflect the opinions or views of the Penn Undergraduate Law Journal, our staff, or our clients.

0 Comments

Your comment will be posted after it is approved.


Leave a Reply.


    Categories

    All
    Akshita Tiwary
    Alana Bess
    Alana Mattei
    Albert Manfredi
    Alexander Saeedy
    Alexandra Aaron
    Alexandra Kanan
    Alice Giannini
    Alicia Augustin
    Alicia Kysar
    Ally Kalishman
    Ally Margolis
    Alya Abbassian
    Anika Prakash
    Anna Schwartz
    Ashley Kim
    Astha Pandey
    Audrey Pan
    Benjamin Ng'aru
    Brónach Rafferty
    Bryce Klehm
    Cary Holley
    Christina Gunzenhauser
    Christine Mitchell
    Christopher Brown
    Clarissa Alvarez
    Cole Borlee
    Connor Gallagher
    Dan Spinelli
    Dan Zhang
    David Katz
    Davis Berlind
    Derek Willie
    Dhilan Lavu
    Edgar Palomino
    Edna Simbi
    Ella Sohn
    Emma Davies
    Esther Lee
    Evelyn Bond
    Filzah Belal
    Frank Geng
    Gabriel Maliha
    Georgia Ray
    Graham Reynolds
    Habib Olapade
    Hailie Goldsmith
    Haley Son
    Harshit Rai
    Henry Lininger
    Hetal Doshi
    Iris Zhang
    Irtaza Ali
    Isabela Baghdady
    Ishita Chakrabarty
    Jack Burgess
    Jessica "Lulu" Lipman
    Joe Anderson
    Jonathan Lahdo
    Jonathan Stahl
    Joseph Squillaro
    Justin Yang
    Kaitlyn Rentala
    Kanishka Bhukya
    Katie Kaufman
    Kelly Liang
    Keshav Sharma
    Ketaki Gujar
    Lauren Pak
    Lavi Ben Dor
    Libby Rozbruch
    Lindsey Li
    Luis Bravo
    Lyndsey Reeve
    Madeline Decker
    Maja Cvjetanovic
    Maliha Farrooz
    Marco DiLeonardo
    Margaret Lu
    Matthew Caulfield
    Michael Keshmiri
    Mina Nur Basmaci
    Muskan Mumtaz
    Natalie Peelish
    Natasha Darlington
    Natasha Kang
    Nayeon Kim
    Nicholas Parsons
    Nicholas Williams
    Nicole Greenstein
    Nihal Sahu
    Omar Khoury
    Owen Voutsinas Klose
    Owen Voutsinas-Klose
    Pheby Liu
    Rachel Bina
    Rachel Gu
    Rachel Pomerantz
    Rebecca Heilweil
    Regina Salmons
    Sajan Srivastava
    Sandeep Suresh
    Sanjay Dureseti
    Sarah Simon
    Saranya Das Sharma
    Saranya Sharma
    Sasha Bryski
    Saxon Bryant
    Sean Foley
    Sebastian Bates
    Serena Camici
    Shahana Banerjee
    Shannon Alvino
    Shiven Sharma
    Siddarth Sethi
    Sneha Parthasarathy
    Sneha Sharma
    Sophie Lovering
    Steven Jacobson
    Suaida Firoze
    Suprateek Neogi
    Takane Shoji
    Tanner Bowen
    Taryn MacKinney
    Thomas Cribbins
    Todd Costa
    Tyler Larkworthy
    Vatsal Patel
    Vikram Balasubramanian
    Vishwajeet Deshmukh
    Wajeeha Ahmad
    Yeonhwa Lee

    Archives

    March 2023
    January 2023
    December 2022
    November 2022
    September 2022
    June 2022
    March 2022
    February 2022
    January 2022
    December 2021
    November 2021
    May 2021
    April 2021
    March 2021
    February 2021
    January 2021
    December 2020
    November 2020
    October 2020
    July 2020
    June 2020
    May 2020
    April 2020
    March 2020
    February 2020
    December 2019
    November 2019
    October 2019
    September 2019
    August 2019
    July 2019
    May 2019
    April 2019
    March 2019
    January 2019
    December 2018
    November 2018
    October 2018
    September 2018
    August 2018
    July 2018
    June 2018
    May 2018
    April 2018
    March 2018
    February 2018
    December 2017
    November 2017
    October 2017
    August 2017
    July 2017
    May 2017
    April 2017
    March 2017
    February 2017
    January 2017
    December 2016
    November 2016
    October 2016
    September 2016
    August 2016
    July 2016
    June 2016
    April 2016
    March 2016
    February 2016
    December 2015
    November 2015
    October 2015
    September 2015
    August 2015
    July 2015
    June 2015
    May 2015
    April 2015
    March 2015
    February 2015
    November 2014
    October 2014
    August 2014
    July 2014
    June 2014
    May 2014
    April 2014
    March 2014
    December 2013
    November 2013
    October 2013
    September 2013

Picture
Picture
​