Tackling Unconstitutional Constitutional Amendments – Can a Transnational Principle Be the Solution?
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.  Locke provided that men are essentially free and equal, refuting the argument that men were naturally subject to the will of the monarch.  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.  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. 
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. 
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.  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. 
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.
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.  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#
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
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
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