Dr. Yaniv Roznai is a Senior Lecturer at the Radzyner School of Law, Interdisciplinary Center (IDC) Herzliya. He holds a PhD and LL.M (Distinction) from The London School of Economics (LSE). His scholarship focuses on comparative constitutional law, constitutional theory, legisprudence, and public international law. His publications have appeared in journals such as The American Journal of Comparative Law, International and Comparative Law Quarterly, Vienna Journal on International Constitutional Law, International Journal of Constitutional Law, among others. He is the author of the well acclaimed “Unconstitutional Constitutional Amendments: The Limits of Amendment Powers” which was published in 2017 with Oxford University Press under the Constitutional Theory Series. In this interview, we asked him about his book, the idea of “unconstitutional constitutional amendments” and the Indian Basic Structure Doctrine and how it can be improved.
IJCAL: First of all, many congratulations on your new book. It’s a much needed scholarship work in the area of constitutional amendability. When we talk of imposing limitations on the constituent powers of legislature, be it explicit or implicit, in bringing about constitutional amendments, doesn’t that signify a failure of constitutional democracies? The leading Indian scholar, Upendra Baxi, after the Keshavananda verdict, called the basic structure doctrine as the constitution of the future. With the rise of a global trend towards preserving certain provisions in the constitution, are we moving towards what some may call as “post-constitution”?
Yaniv Roznai: Many thanks for your congratulations and I appreciate your invitation to participate in this questionnaire – I‟m honoured. The question of failure is indeed a thorny one. Constitutional unamendability emphasises the thin line between constitutional success and constitutional failure. In order to maintain itself and progress with time, a constitution must be able to change and include an amendment procedure to that effect. An unamendable constitution is doomed to fail. At the same time, certain constitutional changes can themselves be regarded as constitutional failures. Amendments that alter the constitution‟s basic principles so as to change its identity signal a breakdown of the existing constitutional regime and its replacement with a new one. In that respect, constitutional unamendability reflects what I term “Amendophobia‟: the fear that the amendment provision would be abused to abrogate the core values of society. Accordingly, it is not so much that unamendability signifies the failure of constitutional democracies” but points to some of its weaknesses, and like militant democracy evinces the fear that unfettered democracy may allow its own destruction. Are we moving to a post-constitution? That is a fantastic question. On the one hand, the similarities between some of the principles that world constitutions deem as unamendable (keeping in mind various particularities) indeed point an almost common constitutional core that is considered as beyond the constitutional power, at least for constitutional democracies. On the other hand, I do not think, however, that from the theory of constitutional unamendability one can necessarily refer limitations on original constitution-making powers. These are two different types of studies. Since the constitutional amendment power is a legal power, or competence, described in the constitution, the question of its limitation is mainly a legal one. In contrast, since constituent power is extra-legal, the question concerning its possible limitation is not one of legality but of legitimacy – what is a legitimate exercise of constituent power? It is a normative theory of constituent power which, in that respect, a more like political philosophy.
IJCAL: The basic structure doctrine has come to be recognized as the bedrock of Indian constitutional jurisprudence. While it is true that the basic structure doctrine saved the identity of the Indian constitution, but it is also noteworthy that it is democratically illegitimate, and it places unfettered powers in the hands of the judiciary to determine what exactly constitutes the basic structure of the constitution (giving an opportunity to the judiciary to entrench itself, owing to the doctrine’s fluid nature). Various scholars have suggested that the parliament itself should declare what the basic structure is comprised of by way of an amendment, something the Bangladeshi constitution adopted in the form of Article 7-B, which finds mention in your book too. To what extent will such a measure give legitimacy to the basic structure doctrine considering the limitation will be imposed by the secondary constituent power on itself (with no role of the primary constituent power), and would such a measure help curb the very wide powers of constitutional review exercised by the Indian Supreme Court, while bearing in mind that it could strike down that amendment itself?
Yaniv Roznai: This is an excellent question. It seems to me that explicitly entrenching limits to constitutional amendments would enhance the legitimacy of both the basic structure itself and its judicial enforcement through judicial review. It could also provide clearer guidelines to the conduct of judicial review. As I wrote with regard to the developed of the basic structure doctrine in Bangladesh, the constitutionalization of the basic structure doctrine in the constitution through the 15th Amendment Act, explicitly confirmed the limited nature of the amendment power. With that said, this raises a thorny theoretical question. According to the delegation theory, limitations upon the delegated secondary constituent power can solely be imposed by the higher authority from which it is derived – the primary constituent power. Unamendable amendments may lose their validity when they face a conflicting valid norm that was formulated by the same authority. Accordingly, provisions created by the amendment power could subsequently be amended by the amendment power itself. Because both amendments are issued by a similar hierarchical authority, their conflict is governed by the principle of lex posterior derogat priori. Therefore, I claimed that an ‘implicit limit’ exists, according to which a constitutional amendment cannot establish its own unamendability. Accordingly, two possible solutions exist: attempting to get the approval of the ‘the people’ to such a constitutional amendment, for example, through a national referendum (after its formal enactment in Parliament), which would provide a legitimation elevator to such unamendability in a “constitutional moment”. Alternatively, and perhaps more practically, such an amendment can simply be regarded not as constitutive but as declarative of an already limited legal power.
Read the full interview here.
Cite as: Interview with Yaniv Roznai, Constitutional Amendability and the Basic Structure Doctrine, 2 Ind. J. of Const. & Admin. L. 129-135(2018) .