Unconstitutional Constitutional Amendments in South Asia: A Study of Constitutional Limits on Parliaments’ Amending Power

Abstract

Against the backdrop of the landscape of Parliamentary Supremacy of south asian countries, members of parliament often cross their limit by thinking parliament as a sovereign body to make unnecessary constitutional amendments which are ultimately questioned by the courts. As a member of the legislative department, I unmasked the reasons behind this unauthorized exercise of power to stop the mockery of parliamentary democracy.Supreme Courts in south Asia are often asked to judge constitutionality of constitutional amendments which provides them with  the opportunity to engage with the noble issue of ‘constitutional limits on parliamentary amending power’. Constitutional courts and commentators have always recognized some short of constitutional limits on parliament’s power to amend the constitution, though the nature and scope of such limits have been a matter of controversy. Courts in South Asia are divided in their opinion. While Court in Bangladesh and India invoked implied substantive constitution limits in parliamentary amending power and declared constitutional amendment unconstitutional in number of occasions, Courts in Srilanka and Pakistan have refused to do so. This study aims to examine the extent and nature of constitutional limits on parliamentary amending power with reference to the constitutional amendments, if any, so far declared by the constitutional courts in South Asia. However, for space constraint and other limits, we will confine ourselves to considering only the constitutional amendments, if any, so far declared unconstitutional in India Pakistan and Bangladesh.  For the purpose this study, we will rely heavily on the jurisprudence developed by the Supreme Courts of Pakistan, India and Bangladesh in amendment cases, and on some fascinating academic literatures written by various constitutional commentators which directly address the position of the courts in these cases.Instead of discussing all the constitutional amendment cases in fragment, this paper will concentrate on studying various constitutional limits invoked by the courts on parliamentary amending power and opinions of the courts in those amendment cases will be referred in cases they are necessary in theoretical discussion of various constitutional limits. However, we will not go to see the procedural limits on amending power prescribed by the constitution itself, in that such limits being expressed in the provisions of the constitution are less controversial and does not merit much theoretical discussion. An attempt will be made to conceptualize the very concept of ‘unconstitutional constitutional amendment’. In this section we will look how the concept emerged in the jurisdictions beyond South Asia. Then will turn to see how South Asian courts in constitutional amendment cases have understood the concept. Conceptualizing unconstitutional constitutional amendment, we will turn to see the constitutional limits which are generally imposed on parliamentary amending power. In this regard, our focus will be to see various substantive constitutional limits invoked by the courts in India, Pakistan and Bangladesh. However details of such limits will be discussed in other appropriate sections dedicated for that purpose.Will have a short discussion on the definition of the term ‘amendment’ and examine if there is any limitation inherent in the term. It will be shown examination of the meaning of the term has greater importance in determining the scope of parliamentary amending power, as the court relied heavily in amendment cases on definition of the term to reach their conclusion.  Examination of the positions of the courts in this regard will show that there are some inherent limits in the term ‘amendment’ which will considerably limit the power of parliament to amend the constitution.

In next section, limit on amending the basic features of the constitution will be discussed. The doctrine of basic structure doctrine will be examined as it is invoked by the courts in India, Bangladesh and Pakistan. A part will be dedicated to address some core criticisms which basic structure doctrine is often to face. At last part of the section, we will turn to see to what extent basic structure provisions are immuned form amendment.We will examine the level of entrenchment enjoyed by fundamental rights against constitutional amendment. Firstly, position of the courts regarding the question- whether fundamental rights are law for the purpose of fundamental rights review- will be examined. Then attempt will be made to see what extent fundamental rights provisions are immured from amendment as one of the basic features of the constitution.In later section we will consider the limit, invoked by the courts in basic structure cases, on radical change of the constitution so that constitutional identity and purpose are not lost. A brief discussion of the concept of constitutional identity with its components will be given in this section.Legitimacy of the constitutional limits on amending power will be considered in the light of various constitutional theories such as constitutionalism, democracy, sovereignty, parliamentary sovereignty and popular sovereignty. While the limits will be judged in the lights of some fundamental constitutional and political concepts, focus will be placed to see how the constitutional limits on constitutional amendment challenged theses theories and to what extent we are forced to rethink those principle or concepts. .We then will turn to see ‘what the constitution is’ and how scope of amendment invariably depends on how one take the constitution to be.  It will be seen that difference in views of the judges regarding nature of constitution ultimately leads them to vary in their positions as to constitutional limits on parliamentary amending power.  In the last section we will turn into the interpretative attitudes adopted by the court to support their position as regard constitutional limits. It is because, without examining the mode of interpretation which helps to base the limitations and the theories which support and contradict such limitation, nature and extent of the limits cannot be understood properly.

Keywords: Parliament, Unconstitutional, Amendment, Supreme Court