—Mara Malagodi, The Chinese University of Hong Kong, Faculty of Law; Rehan Abeyratne, The Chinese University of Hong Kong, Faculty of Law; and Ngoc Son Bui, The University of Oxford
[Editors’ Note: This is one of our biweekly ICONnect columns. For more information on our four columnists for 2021, please see here.]
Judicial interventions in questions of constitutional unamendability are usually contentious, but become even more controversial when they encroach upon the activity of constitution making. Adjudication over unconstitutional constitutional amendments already interrogates the appropriate limits to judicial involvement in the constitutional sphere. However, when this kind of adjudication is coupled with direct judicial interference in the exercise of constituent power, the notion of constitutional supremacy clashes even more directly with that of popular sovereignty and the realm of law and the realm of politics explosively collide.[1]
Constitutional unamendability is part of constitutional politics for at least four reasons: (1) the political nature of the constituent power; (2) the political nature of foundational constitutional questions; (3) the political nature of constitutional disagreements; and (4) consequently the political protection of constitutional unamendability.[2] First, the constituent power is not a legal aggregate entity but a politically constructed one. Second, unconstitutional constitutional amendments often touch on fundamental questions of a polity. These questions are not merely legalistic. These are also political questions as they deal with political ideals and ideas, political systems, political institutions, and they may inform political activities and behaviors. Third, the questions of unconstitutional constitutional amendments may generate higher level political disagreements. Constitutional questions often create disagreements, but the fundamental questions concerning the basic structure and identity of the constitutional order may be more controversial and, hence, induce greater disagreement. Fourth, the protection of constitutional unamendability is not merely a legal or judicial concern, but also a political one. As questions of unconstitutional constitutional amendments are foundational political questions which generate reasonable political disagreements, it is myopic to think that UCA is or should be limited to the courts. Tackling such questions often involves political and social actors beyond courts including citizens, legislators, activists, and political parties.[3]
The clash between the legal and the political in constitutional adjudication becomes more exasperated when judges intervene in a constitution-making process that is carried out through a Constituent Assembly. As Andrew Arato explains, Constituent Assemblies are the archetype of revolutionary constituent power: they are conceptualised as sovereign institutions with unlimited powers; they embody the unified will of the people and promise a total rupture from the old regime through a foundational moment.[4] In practice Constituent Assemblies – even highly representative and diverse bodies like the one in Nepal – are often sidelined in constitution-making processes and the task of actually writing the constitution is carried out by a much smaller group of political actors belonging to the dominant elites resulting in the effective exclusion of already marginalized groups.[5] So what extent are judges entitled to patrol the exercise of constitution making and curb potential excesses?
In this respect, Nepal represents an extreme instance of the politics of constitutional unamendability. The intervention of the Supreme Court of Nepal in the life (and demise) of the country’s first Constituent Assembly (“CA1”), which operated between 2008 and 2012 in a post-conflict context, illuminates the importance of focusing on the politics of unamendability, rather than solely on legal and institutional features.
The initial two-year term of CA1 (May 2008-May 2010) was extended four times by way of constitutional amendment of the initial Assembly’s term under Article 64 of the 2007 Interim Constitution: first, by a year (May 2010-May 2011) under the 8th Amendment of the 2007 Interim Constitution; second, by three months (May-August 2011) under the 9th Amendment; third, by other three months (August-November 2011) under the 10th Amendment; and finally by six months (November 2011-May 2012) under the 11th Amendment. A fifth attempt to extend the Assembly by another three months (May-August 2012) was made by tabling the 13th Amendment Bill but was ultimately unsuccessful.
Judicial activism in this area grew exponentially after the third extension of CA1 with the 10th Amendment of the Interim Constitution in August 2011. Until that point the Supreme Court had been rather deferential to the elected branches by deploying the doctrine of necessity.[6] However, as new petitions kept coming in to challenge the constitutionality of the amendments, on 25 November 2011, the Supreme Court took a firmer stance and held that any further extensions of the Assembly’s term would be a violation of the 2007 Interim Constitution and that such an amendment would be held unconstitutional.[7] This order effectively served as constructive notice forbidding further extensions of the Assembly’s term by way of constitutional amendment to the Interim Constitution. The Supreme Court, however, stopped short of invalidating the 10th Amendment and stated that if the Constituent Assembly could not complete the task of constitution drafting within the extended period, it would be ipso facto terminated.
Under the 2007 Interim Constitution, the Supreme Court invoked unamendability in ‘denotive’ fashion in that it is part of judicial rhetoric and reference, but not used as a binding doctrine. Nepal therefore lay between jurisdictions in which unamendability exists purely at the ‘discursive’ level of public or intellectual debate (such as in Japan, China, and Vietnam), and those in which courts strike down duly enacted constitutional amendments in ‘decisive’ fashion (India, Bangladesh, Thailand, Taiwan).[8]
When CA1 failed to complete the drafting of the new constitution within the extended timeframe, on 22 May 2012, the Government tabled the Constitution (13th Amendment) Bill to amend the Interim Constitution and extend the CA1 term further. Immediately, yet another petition was filed in the Supreme Court seeking a stay order on the proposed amendment. On 24 May, the court issued the order demanded by the petitioners and effectively disallowed any further extensions. It therefore effectively placed constitutional limitations to the existence of CA1 beyond its term.[9] When the leaders failed to reach a compromise on federalism on 27 May 2012, the Prime Minister advised the President to dissolve CA1 and immediately called for new elections. The dissolution of the Assembly left Nepal with neither a legislature nor a constitution-drafting body in place for over a year and a half. It also led to a major constitutional crisis in which the Supreme Court became directly embroiled as Chief Justice Khil Raj Regmi, who had adjudicated a number of these cases, became the Interim Prime Minister without relinquishing his judicial post exposing a clear conflict of interest and a violation of the most basic tenet of the doctrine of separation of powers.
The problematic nature of the Nepal Supreme Court’s interventions in the life of CA1 resulted from a combination of judicial activism and partisan politics. On the one hand, the constitution-making process could not continue indefinitely especially since the party leaders had already highjacked the drafting process from the Constituent Assembly. Moreover, the Supreme Court put a stop to further extensions by way of constitutional amendment after the fourth time, only when a fifth extension was attempted. On the other hand, the involvement of Chief Justice Regmi in executive politics after the dissolution of CA1 retrospectively casted a nefarious light on the intentions of the bench in adjudicating those cases.[10]
The ‘denotive’ treatment of the UCA doctrine in Nepal under the 2007 Interim Constitution was, however, transformed into a ‘decisive’ one’. Unamendability was given a clear constitutional basis under an eternity clause through Article 274 the 2015 Constitution, which specifies that no amendment may violate the constitution’s basic structure by contravening Nepal’s independence, self-rule, territorial integrity, or the principle of popular sovereignty. It seems that once adjudication over unconstitutional constitutional amendments enters the constitutional domain, it acquires a degree of path-dependency, even in a case like Nepal where the results of this type of adjudication have been so politically fraught. More broadly, it appears that once courts become involved in the politics of unamendability, they assume an increasingly interventionist role, even if falling short of striking down amendments as unconstitutional. Courts in other Asian countries – like Malaysia and Pakistan – appear to be following a similar trajectory.
Suggested citation: Mara Malagodi, Rehan Abeyratne, and Ngoc Son Bui, Constituent Power and the Politics of Unamendability, Int’l J. Const. L. Blog, Sept. 8, 2021, at: http://www.iconnectblog.com/2021/09/constituent-power-and-the-politics-of-unamendability/
[1] For a more detailed discussion see: Rehan Abeyratne and Ngoc Son Bui (eds), The Law and Politics of Unconstitutional Constitutional Amendments in Asia (Routledge, forthcoming 2021).
[2] Bui Ngoc Son, ‘Politics of Unconstitutional Constitutional Amendments: The Case of Thailand’ in Henning Glaser (ed) Identity and Change – The Basic Structure in Asian Constitutional Orders (Nomos, forthcoming), https://ssrn.com/abstract=3515859.
[3] Abeyratne and Bui (n 1).
[4] A. Arato, Post Sovereign Constitution Making (Oxford: Oxford University Press, 2016), 91, 108.
[5] For a critique of constituent power see H. López Bofill, Law, Violence and Constituent Power (London: Routledge, 2021).
[6] Adv. Bal Krishna Neupane v President of Nepal; Bharatmani Jangam v President of Nepal Writ Petition N.067-WS-0071 decided on 28 August 2011 (BS 2068/05/11).
[7] Adv. Bharat Mani Jangam and Adv. Bal Krishna Neupane v. Prime Minister and Cabinet Office et al. Writ N. 068-WS-0014. The petition was filed on 21 September 2011 and the decision was handed down on 25 November 2011.
[8] Abeyratne and Bui (n 1).
[8] Adv. Rajkumar Rana, Adv. Kanchan Krishna Neupane and Adv. Bharat Mani Jangam v Prime Minister and Cabinet Office et al. Writ N. 068-WS-1085, 1086, 1087. The decision was handed down on 24 May 2012.
[10] For a more detailed discussion see: M. Malagodi ‘Limiting Constituent Power? Unconstitutional constitutional amendments and time-bound constitution making in Nepal ’in Rehan Abeyratne and Ngoc Son Bui (eds), The Law and Politics of Unconstitutional Constitutional Amendments in Asia (Routledge, forthcoming 2021).
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