Constitutions with unenumerated limits do not provide for any
limits to the constitution amendment power, therefore, strictly
speaking, the entire constitution can be turned on its head if the
legislators follow the constitutional amendment procedure. Because
one of the objectives of constitutions is self-preservation,
countries with no explicit limits have adopted implicit limitations
to safeguard against the destruction of the constitution by the
government in power. India is a good example of this.
The Indian constitution provides a procedural hurdle for the
amendments in certain areas of the constitution, but there are no
limits on the amendment powers of lawmakers. In Golak Nath v
Punjab, AIR [1967] SC 1643, a case which concerned a constitutional
amendment that abolished property rights in India, the Supreme
Court ruled that an amendment could not abridge fundamental rights
even if it followed the constitutional procedure.
In 1973, following the enactment of four constitutional
amendments that limited the power of judges and judicial review and
restricted property rights, the Supreme Court in the landmark case
of Kesavananda Bharati v Kerala,AIR [1973] SC 1461, applied the
basic structure doctrine. In his judgment, Khanna J. said, “it is
not permissible to touch the foundation or to alter the basic
institutional pattern. The words ‘amendment of the Constitution’
with all their wide sweep and amplitude cannot have the effect of
destroying or abrogating the basic structure or framework of the
Constitution.”
The seven-to-six majority decision also held that contrary to
the decision in Golak Nath, any part of the constitution could be
amended.
Following more conflicts between the judiciary and the other
arms of government, led by Indira Gandhi, the Supreme Court
reasserted itself in the case of Minerva Mills v India, AIR [1980]
SC 1789. In the words of Chandrachud CJ., “[t]he power to destroy
is not the power to amend. Since the Constitution had conferred a
limited amending power on the Parliament, the Parliament cannot
under the exercise of that limited power enlarge that very power
into an absolute power.”
In essence, the basic structure doctrine upheld by the Indian
courts recognises that even where the legislature follows the
constitutional procedure for amendment, the content of their
amendments must be in line with the basic ideology of the
Constitution. One may then ask who decides what the basic ideology
is. In the case of India, the judiciary has taken on the role of
diviner and defender of the basic principles of the constitution.
But there are problems with judicial enforcement of the powers of
amendment.
Those against judicial enforcement of the amendment powers of
the legislature argue that it is a threat to democracy. The
legislature is an elected arm of government, representing the
interests of the people, whereas, judges are unelected. Therefore,
if judges are allowed to curtail the amendment powers of the
legislature, it would mean that a small group of unelected
officials are able to override the will of the people as expressed
through their elected representatives in the legislature. Another
argument against judicial enforcement is that it breaches the
doctrine of Separation of Powers. The three arms of government
exist with varied functions to maintain checks and balances between
them. The legislature makes laws, including laws to amend the
constitution; the executive implements the laws; and the judiciary
interprets the laws. Allowing judicial enforcement of the
legislature’s amendment powers is a usurpation of legislative
powers.
If the judiciary is allowed to step on the legislature’s power
of amendment, it would mean than the judiciary ranks higher than
the other arms of government and essentially is removed from the
circle of check and balances inherent in the separation of powers.
There is also the possibility of politicisation as occurred in the
case of India where Indira Ghandi made judicial appointments based
on her politics, punishing judges whose rulings went against her
political desires. It is also argued that allowing judges to review
the amendment powers of the legislature results in undue judicial
influence without the requisite skill to assess the consequences of
their decisions. Finally, especially in constitutions with
unenumerated limits, the potential abuse of power by the judiciary
is a concern. Judicial review also leaves room for ambiguity. This
is evidenced in the Kesavananda case in India where even the judges
who agreed on the Basic Structure principle did not agree on what
exactly constituted the constitutional core that could not be
amended.
On the other hand, it is argued that judicial enforcement of
amendment powers is a safe-guard against the risk of replacement of
the constitution. Judicial enforcement also keeps the constitution
flexible and adaptable to the passage of time and changing needs of
society. And, above all, it protects the core values and basic
structure of the constitution from destruction.
The 1999 CFRN provides for judicial enforcement through section
4(8) which states:
“… the exercise of legislative powers by the National Assembly
or by a House of Assembly shall be subject to the jurisdiction of
courts of law and of judicial tribunals established by law, and
accordingly, the National Assembly or a House of Assembly shall not
enact any law, that ousts or purports to oust the jurisdiction of a
court of law or of a judicial tribunal established by law.”
Prior failed attempts at amending the 1999 CFRN have been due to
political factors. The judiciary can only wade into matters when
cases are taken to court. If indeed there is a basic core of our
constitution it would be interesting to see what the courts reveal
and how the proposed 2017 amendments stack up against that basic
structure. What can we expect from our judiciary? Will they be
activists, like the judges in India, in defending the constitution
or will they be swayed by politics? As I said at the beginning,
this discussion is largely academic. The real question is when will
Nigerians get a Constitution that we can truly call our own; one
that truly represents the aspirations of “We, the people”?
Constitutions with unenumerated limits do not provide for any
limits to the constitution amendment power, therefore, strictly
speaking, the entire constitution can be turned on its head if the
legislators follow the constitutional amendment procedure. Because
one of the objectives of constitutions is self-preservation,
countries with no explicit limits have adopted implicit limitations
to safeguard against the destruction of the constitution by the
government in power. India is a good example of this.
The Indian constitution provides a procedural hurdle for the
amendments in certain areas of the constitution, but there are no
limits on the amendment powers of lawmakers. In Golak Nath v
Punjab, AIR [1967] SC 1643, a case which concerned a constitutional
amendment that abolished property rights in India, the Supreme
Court ruled that an amendment could not abridge fundamental rights
even if it followed the constitutional procedure.
In 1973, following the enactment of four constitutional
amendments that limited the power of judges and judicial review and
restricted property rights, the Supreme Court in the landmark case
of Kesavananda Bharati v Kerala,AIR [1973] SC 1461, applied the
basic structure doctrine. In his judgment, Khanna J. said, “it is
not permissible to touch the foundation or to alter the basic
institutional pattern. The words ‘amendment of the Constitution’
with all their wide sweep and amplitude cannot have the effect of
destroying or abrogating the basic structure or framework of the
Constitution.”
The seven-to-six majority decision also held that contrary to
the decision in Golak Nath, any part of the constitution could be
amended.
Following more conflicts between the judiciary and the other
arms of government, led by Indira Gandhi, the Supreme Court
reasserted itself in the case of Minerva Mills v India, AIR [1980]
SC 1789. In the words of Chandrachud CJ., “[t]he power to destroy
is not the power to amend. Since the Constitution had conferred a
limited amending power on the Parliament, the Parliament cannot
under the exercise of that limited power enlarge that very power
into an absolute power.”
In essence, the basic structure doctrine upheld by the Indian
courts recognises that even where the legislature follows the
constitutional procedure for amendment, the content of their
amendments must be in line with the basic ideology of the
Constitution. One may then ask who decides what the basic ideology
is. In the case of India, the judiciary has taken on the role of
diviner and defender of the basic principles of the constitution.
But there are problems with judicial enforcement of the powers of
amendment.
Those against judicial enforcement of the amendment powers of
the legislature argue that it is a threat to democracy. The
legislature is an elected arm of government, representing the
interests of the people, whereas, judges are unelected. Therefore,
if judges are allowed to curtail the amendment powers of the
legislature, it would mean that a small group of unelected
officials are able to override the will of the people as expressed
through their elected representatives in the legislature. Another
argument against judicial enforcement is that it breaches the
doctrine of Separation of Powers. The three arms of government
exist with varied functions to maintain checks and balances between
them. The legislature makes laws, including laws to amend the
constitution; the executive implements the laws; and the judiciary
interprets the laws. Allowing judicial enforcement of the
legislature’s amendment powers is a usurpation of legislative
powers.
If the judiciary is allowed to step on the legislature’s power
of amendment, it would mean than the judiciary ranks higher than
the other arms of government and essentially is removed from the
circle of check and balances inherent in the separation of powers.
There is also the possibility of politicisation as occurred in the
case of India where Indira Ghandi made judicial appointments based
on her politics, punishing judges whose rulings went against her
political desires. It is also argued that allowing judges to review
the amendment powers of the legislature results in undue judicial
influence without the requisite skill to assess the consequences of
their decisions. Finally, especially in constitutions with
unenumerated limits, the potential abuse of power by the judiciary
is a concern. Judicial review also leaves room for ambiguity. This
is evidenced in the Kesavananda case in India where even the judges
who agreed on the Basic Structure principle did not agree on what
exactly constituted the constitutional core that could not be
amended.
On the other hand, it is argued that judicial enforcement of
amendment powers is a safe-guard against the risk of replacement of
the constitution. Judicial enforcement also keeps the constitution
flexible and adaptable to the passage of time and changing needs of
society. And, above all, it protects the core values and basic
structure of the constitution from destruction.
The 1999 CFRN provides for judicial enforcement through section
4(8) which states:
“… the exercise of legislative powers by the National Assembly
or by a House of Assembly shall be subject to the jurisdiction of
courts of law and of judicial tribunals established by law, and
accordingly, the National Assembly or a House of Assembly shall not
enact any law, that ousts or purports to oust the jurisdiction of a
court of law or of a judicial tribunal established by law.”
Prior failed attempts at amending the 1999 CFRN have been due to
political factors. The judiciary can only wade into matters when
cases are taken to court. If indeed there is a basic core of our
constitution it would be interesting to see what the courts reveal
and how the proposed 2017 amendments stack up against that basic
structure. What can we expect from our judiciary? Will they be
activists, like the judges in India, in defending the constitution
or will they be swayed by politics? As I said at the beginning,
this discussion is largely academic. The real question is when will
Nigerians get a Constitution that we can truly call our own; one
that truly represents the aspirations of “We, the people”?
Read more https://www.nairalaw.com/amending-the-constitution-when-there-are-no-limits-2/