MONA LAW Tracy Robinson

CONSTITUTIONAL LAW Monday, January 27, 2014

WHAT SHOULD I BE ABLE TO DO AT THE END OF
THIS WORKSHEET?
Define the concepts of Discuss with reference to the Describe the procedures
parliamentary sovereignty, provisions of the constitution Caribbean constitutions
constitutional supremacy and and relevant cases the basis of introduce for changing the
judicial review and the the doctrine of constitutional constitutions
relationship between them supremacy

Explain why Jamaicas attempt Discuss the controversy about

to introduce an amendment to
the Constitution was not
effective in replacing the Privy
Council as the final court of
appeal with the CCJ and what
is required.
whether an amendment to the
constitutions that meets these
requirements nevertheless can
be unconstitutional, ie the basic
structure doctrine.

2
SUPREMACY OF THE CONSTITUTION: WHAT WE
WILL LEARN
Tension
Core notion of between Amending the
supremacy lawmaking and constitution
judicial review
Background of
Description of procedures
parliamentary for amendment
sovereignty What JR means

Why Jamaicas effort to

What it means amend the Constitution in
IJCHR failed

How far can the courts Can an amendment to the

interfere with constitution meeting
Basis / lawmaking? manner and form
Foundation requirements nevertheless
be unconstitutional
3
TRADITIONAL UNDERSTANDINGS AND HOW THEY HAVE CHANGED
Legal theory giving way to
Traditional understandings
political realities

Parliament can do everything Freedom once given cannot be taken

away as a political matter (Blackburn)
but make a woman a man and Independence
a man a woman (Dicey) devolution

Parliament can make and basic principles must now be considered

unmake any law (Dicey)
Parliament is not bound by its
predecessors, no special
procedure is required to make
changes
in the light of constitutional
developments such as the enactment of
the European Communities Act 1972
laws made by UK Parliament may have
to give way to supremacy of community
law. (Symonette)
UK Human Rights Act 1998 gives the
court power to make a declaration of
incompatibility

4
FEATURES OF CONSTITUTIONAL SUPREMACY
Ordinary laws must conform with
the constitution.
Ordinary laws are ranked lower than the
constitution. The constitution is the highest
authority. Acts of Parliament must conform
with constitution.
Judicial review
Court is the institution with the authority to
resolve conflicts about the constitutionality
of governmental action.
Special procedures for amending
the constitution.
Parliament must follow special procedures
for amending the constitution if it wishes
enact legislation that infringes the
constitution. It is supreme and not yet
supreme. Parliament can alter the
constitution in the manner prescribed by the
Constitution.
Limits on governmental power
5
TEXTUAL SUPPORT FOR SUPREMACY
See Ja s 2 See Ja s 48
Explicit or Subject to the
implied const parliament
may

Supremacy Limits on
clause parliamenta
ry power

Judicial Entrenchm
review ent
See Ja s 19 See Ja s 49
redress clause

6
TEXTUAL SUPPORT
SVG s 101
This Constitution is the supreme law of Saint T&T, s. 53
Vincent and, subject to the provisions of this 53. Parliament may make laws for the
Constitution, if any other law is inconsistent with peace, order and good
this Constitution, this Constitution shall prevail
and the other law shall, to the extent of the government of Trinidad and Tobago
inconsistency, be void.

SVG ss 16, 96
16. (1) If any person allege that any of the provisions of
sections 2 to 15 inclusive of this Constitution has been, is
being or is likely to be contravened in relation to him Jamaica s 49
then, without prejudice to any other actin with respect to Subject to the provisions of this section
the same matter that is lawfully available, that person (or
that other person) may apply to the High Court for redress. Parliament may by Act of Parliament
96. (1) if any person who alleges that any provisions of passed by both Houses alter any of the
this Constitution (other than a provision of Chapter 1 provisions of this Constitution
thereof) has been or is being contravened may, if he has a
relevant interest, apply to the High Court for a declaration
and for relief under this section.
7
EXERCISE; PART 1
The UK Parliament has expressed its deep dissatisfaction with the
position of Caribbean governments on the death penalty and buggery
laws.
The death penalty was abolished there over fifty years ago and
sodomy laws have also been repealed.
The UK government was extremely dismayed at the position taken on
homosexuality by its Caribbean dependencies and it has already
enacted legislation by Orders in Council for those territories,
unilaterally abolishing the death penalty and repealing sodomy laws.
There is a clever suggestion that if Parliament in the UK is sovereign, it
can revoke the independence granted to the Caribbean states and
enact legislation applicable to them. In fact, one parliamentarian pulls
out the Jamaica constitution and says it gets its authority from a UK
Order in Council and can be taken away by one.
On January 1, 2014, the UK Parliament enacts two statutes with
purported direct application to the Caribbean: one abolishes the death
penalty and the second repeals all sodomy laws.
Discuss the concept of UK parliamentary sovereignty that is being invoked
here and is it persuasive?
8
EXERCISE, PART 2
IN RESPONSE THE CARICOM ATTORNEY GENERALS OF THE INDEPENDENT COU NTRIES OF THE
CARIBBEAN HAVE SAID:

Rubbish, we are independent countries and our constitutions are

the supreme law in our country and no act of the UK Parliament
can determine the law in Jamaica or another independent
Caribbean country.
In relation to existing laws, section 4 of the Order in Council
saves colonial laws with such modifications to bring it into
conformity with the Constitution.
In relation to post independence laws, section 48 of the
Constitution says Parliament may make laws for the peace,
order and good government of Jamaica.
What support from the constitution or otherwise can you offer for
this statement about supremacy?
9
PART 3
A well-known human
rights advocate who is
a parliamentarian in
Britain fires back a
response: Well if your
constitutions are
supreme and they
protect the human
rights of all citizens in a
special chapter, then
how can you uphold
laws that violate human
rights? contravention of the provisions of this Chapter.
S 13(7) Nothing contained in or done under the
authority of any law shall be held to be
inconsistent with or in contravention of
subsection (6) to the extent that the law in
question authorizes the infliction of any
description of punishment which was lawful in
Jamaica immediately before the
commencement of the Charter of Fundamental
Rights and Freedoms (Constitutional
Amendment) Act, 2011.
S 13(12) Nothing contained in or done under the
authority of any law in force immediately
before the commencement of the Charter of
Fundamental Rights and Freedoms
(Constitutional Amendment) Act, 2011, relating
to
(a) sexual offences;
(b) obscene publications; or
(c) offences regarding the life of the unborn,
shall be held to be inconsistent with or in
10
 Collymore v AG

EARLY DISCUSSIONS ON THE LIMITS ON

PARLIAMENTARY POWER AND CONSTITUTIONAL
SUPREMACY AND JUDICIAL REVIEW
11
The Industrial Stabilisation Act was
passed in 1965 and it prohibited calling
a strike in contravention of the provisions
of Act and mandated arbitration in
disputes.
The employees of an oil company
brought an action for judicial review of
the Act on the ground that it contravened
the provisions of the 1962 Constitution,
particularly freedom of association.

12
WOODING CJ
s. 36 of the Constitution provides that subject to the provisions of this Constitution, Parliament
may make laws for the peace, order and good government of Trinidad and Tobago. In my
judgment, the section means what it says. And what it says, and says very clearly, is that the
power and authority of Parliament to make laws are subject to its provisions. Parliament may
therefore be sovereign within the limits thereby set, but if and whenever it should seek to make
any law such as the Constitution forbids it will be acting ultra vires.
Manifestly, the Canadian enactment is fundamentally different. It is not entrenched as a part
of a constitution but is merely enacted as a statute of Parliament. Much more to the point, it is
in terms interpretative and not prohibitive. In my opinion, the change from the language of the
source was deliberate and purposive. I am accordingly in no doubt that our Supreme Court
has been constituted, and is, the guardian of the Constitution, so it is not only within its
competence but also its right and duty to make binding declarations, if and whenever
warranted, that an enactment passed by Parliament is ultra vires and therefore void and of no
effect because it abrogates, abridges or infringes or authorises the abrogation, abridgment or
infringement of one or more of the rights and freedoms recognised and declared by s 1 of the
chapter.
13
PHILLIPS JA
It was submitted by the learned Attorney-General that the doctrine of ultra
vires is not applicable to the present case. The argument was not fully
developed, but it seemed to be based on a suggestion that the legal efficacy
of Cap 1 of the Constitution was not (or could not be) greater than that of the
Canadian Bill of Rights.
However, whatever may be the true interpretation to be placed upon the
requirement of s 2 of the Canadian Bill of Rights ... it seems to me that the
imperative provisions of s 2 of the Constitution are so clear and explicit as not
to admit of the possibility of their being construed otherwise than as rendering
invalid any law which offends against the prohibitions therein contained. When
once this proposition is accepted, it appears to me to be obvious that even
without express provision a power of judicial review of Parliamentary
legislation must reside in the Supreme Court of this country.
14
FRASER JA: NO ONE, NOT EVEN PARLIAMENT, CAN
DISOBEY THE CONSTITUTION WITH IMPUNITY.
There is no doubt in my mind about this and the conjoint effect of ss 2
and 6 of the Constitution is to confer upon the High Court the function of
judicial review over such legislative measures as may be taken in
contravention of the expressed provisions of ss 4 and 5 of the
Constitution. No question of the sovereignty of Parliament arises here. It
is simply a matter of obeying the Constitution. No one, not even
Parliament, can disobey the Constitution with impunity. Parliament can
amend the Constitution only if the constitutional prescriptions are
observed and providing Parliament fulfills the requirements of the
Constitution its power is sovereign and supreme. But if Parliament fails or
neglects to do so and thereby contravenes the expressed provisions of
the Constitution any person who alleges that he has been, or that he is,
or that he is likely to be prejudiced by such contravention may seek
recourse to the High Court and pray its relief.
15
KEY IDEAS FROM COLLYMORE
Supremacy Powers of Powers of
parliament supreme court
Section 2
Prohibitive Section 36 Constituted as guardian of
Imperative constitution
Entrenched

Subject to the constitution, Judicial review not just

cannot disobey the within competence, but
Constitution with impunity right and duty

Doctrine of ultra vires

Parliament is supreme if it Power is implied even if
follows the constitution not express

16
RELATIONSHIP BETWEEN ACTS OF PARLIAMENT
AND THE CONSTITUTION
Ranked lower than the constitution.
The constitution is the highest authority.
Acts of Parliament must conform with constitution. (no one, not even
parliament can disobey the constitution with impunity)
Parliament must follow special procedures for amending the constitution if it
wishes to enact laws that are inconsistent with it
The SC can review whether Parliament has followed the correct procedures
for changing the Constitution

17
WHAT IS JUDICIAL REVIEW?
Power and duty of the
superior court to review
governmental action and say
whether it is constitutional or
not
It is an incident of
supremacy and affirms
supremacy
This includes power to review an
Act of Parliament and declare
it is inconsistent with a
constitutional provision and is to
the extent of the inconsistency,
void.
Apart from judicial
review, the duty of the
courts is to administer
Acts of Parliament, not
to question them
18
 Judicial Limits on
Review is judicial power

19
READING BAHAMAS METHODIST
CHURCH V SYMONETTE
20
THE RELATIONSHIP BETWEEN LAWMAKING PROCESS AND JUDICIAL REVIEW :
LIMITS ON JUDICIAL REVIEW

Can you bring judicial

review at the stage of
the Bill?
Can you claim
parliament failed to Parliamentary
power over its
proceedings Judicial review of
follow its own internal legislation

procedures?
failure to comply with the
requirements of the Rules of the
House of Assembly regarding the
introduction of private Bills.

21
PARLIAMENT HAS EXCLUSIVE CONTROL OVER THE CONDUCT OF ITS
OWN AFFAIRS
The courts will not allow any challenge to be
made to what is said or done within the walls of
parliament in performance of its legislative
functions.
The law-makers must be free to deliberate upon
such matters as they wish.
Alleged irregularities in the conduct of
parliamentary business as a matter for parliament
alone.

22
COEXISTENCE OF PS AND CS
Principles associated with PS are displaced so far as necessary to give
effect to constitutional supremacy.
The courts have the right and duty to interpret and apply the Constitution
as the supreme law of The Bahamas. In discharging that function the
courts will, if necessary, declare that an Act of Parliament inconsistent with
a constitutional provision is, to the extent of the inconsistency, void.
That function apart, the duty of the courts is to administer Acts of
Parliament, not to question them.
The courts of The Bahamas should avoid interfering in the legislative
process
Exceptionally, there may be a case where the protection intended to be
afforded by the Constitution cannot be provided by the courts unless they
intervene at an earlier stage. For instance, the consequences of the
offending provision may be immediate and irreversible and give rise to
substantial damage or prejudice.

23
Section 49
IJCHR case

ENTRENCHMENT AND
CONSTITUTIONAL CHANGE
24
HOMEWORK
Read the worksheets 1 & 2 (Sections A E)
Read Jamaica Independent HR Council case
Section 110 of the Constitution (which forms Part 3 of Chapter VII of the Constitution) provides for
a right of appeal from the Court of Appeal to Her Majesty in Council. The Caribbean Court of
Justice (Constitutional Amendment) Act 2004 altered this part of the Constitution by deleting the
reference to Her Majesty in Council and substituting reference to the Caribbean Court of Justice.
1. What other parts or sections of the constitution were relevant to this case?
2. You have encountered some key concepts in constitutional lawconstitutional
supremacy, parliamentary sovereignty and judicial review. Were they relevant to
this case or discussed in this case?
3. What is entrenchment? What are the levels of entrenchment of the Constitution?
4. The PC accepted the argument of Lloyd Barnett it is the substance of the law that must be
regarded not the form What did this mean?

25
 Chapter 1: Chapter 5: Chapter 7:
Preliminaries Parliament Judicature
S 1. Supremacy Part 2: Powers Part 3: Appeals to
Clause and Procedures her Majesty in
Thus the S 48: Power to Council
Constitution and make laws S 110
not, as in the UK, S 49: Alteration of Chapter VII
Parliament is to be Constitution established a
sovereign regime in respect
of the higher
judiciary that
assured their
independence from
political pressure

26
ENTRENCHMENT: IT PURPOSE
Hinds: assessing the need for
later change
It was foreseen that with the passage
of time and the benefit of experience
alteration of the Constitution would on
occasion be necessary and the
framers took care to grade its
provisions so as to require different
levels of popular support depending
on the structural significance of the
provision to be altered
IJCHR: insisting on mature
reflection
The purpose served by this machinery for
entrenchment is to ensure that those
provisions which were regarded as
important safeguards by the political
parties in Jamaica, minority and majority
alike, who took part in the negotiations
which led up to the constitution, should not
be altered without mature consideration
by the parliament and the consent of a
larger proportion of its members than the
bare majority required for ordinary laws.
27
ENTRENCHMENT
Bill introduced in HR Bill must be passed in
Deeply at least 6 months each House by not
less than two-thirds of
Bill must be approved
by a majority of the
entrenched before passage by
HR all the Members of electorate.
that House

Bill must be passed in

entrenched' but Bill introduced in HR each House by not
at least 6 months
not 'deeply before passage by less than two-thirds of
all the Members of
entrenched' HR that House

All other
supported by the
provisions neither votes of a majority of
deeply all Members of each
House (not just those
entrenched nor present)
entrenched

28
ENTRENCHMENT AND CONSTITUTIONAL SUPREMACY AND PARLIAMENTARY
SOVEREIGNTY
Collymore v AG, Fraser JA
No one, not even Parliament, can disobey the
Constitution with impunity. Parliament can
amend the Constitution only if the constitutional
prescriptions are observed and providing
Parliament fulfils the requirements of the
Constitution its power is sovereign and supreme.
But if Parliament fails or neglects to do so and
thereby contravenes the expressed provisions
of the Constitution any person who alleges that
he has been, or that he is, or that he is likely to
be prejudiced by such contravention may seek
recourse to the High Court and pray its relief.
There is clear authority for this view. I refer to the
case of Bribery Comr v Ramasinghe ([1964] 2 All ER
785,[1965] AC 172,[1964] 2 WLR 1301, 108 Sol Jo
441, 27 MLR 705, 235 LT 311, PC) in which the Privy
Council held that a legislature has no power to ignore
the conditions of law-making that are imposed by the
instrument which itself regulates its power to make
law; so that where, as in that case, the Constitution
required the Speakers certificate as a necessary part
of the legislative process a Bill which did not comply
with that provision was invalid and ultra vires even
though it received the Royal Assent.
29
IT IS THE SUBSTANCE OF THE LAW THAT MUST BE
REGARDED NOT THE FORM: IMPLIED ALTERATION
The question is whether a power to review the decision of the higher
courts of Jamaica may properly be entrusted, without adopting the
procedure mandated by the Constitution for the amendment of
entrenched provision, to a new court which, whatever its other merits,
does not enjoy the protection accorded by the Constitution to the
higher judiciary of Jamaica
The test is not whether it is weaker or stronger but whether it is
different, because if it is, the effect of the legislation is to alter the
regime established by Chapter 7
The risk is that the Govts of the CS might amend the CCJ Agreement
so as to weaken its independence and that gives rise to a risk that
did not exist in the same way before

30
[16]
What was constitutionally objectionable, Dr Barnett
submitted, was to establish a new court to which appeals
from the Court of Appeal would lie when the new court
would enjoy none of the entrenched protection afforded
by the Constitution to the Supreme Court and the Court of
Appeal and when the parliamentary procedure followed
was not that mandated by the Constitution for amendment
of an entrenched provision.
Dr Barnett said that it would make a mockery of the
Constitution if the safeguards entrenched to ensure the
integrity of legal process in Jamaica could be
circumvented by creating a superior court enjoying no such
constitutional protection. 31
It was no answer to point to the safeguards contained in the CCJ
Agreement, since these enjoyed no constitutional protection in
Jamaica and could in any event be amended by agreement of the
parties to the Agreement followed by ratification, both of them
executive acts taking effect in Jamaican law on no more than
affirmative resolution.
Nor was it any answer to point out that the right of appeal to the
Privy Council was not entrenched in the Constitution, since that was
an existing right, the independence of the Privy Council and its
imperviousness to local pressure had never been in doubt and it was
not clear how the framers of the Constitution could have entrenched
the independence of members of the Judicial Committee had they
wished to do so. 32
THE POSITION OF JAMAICANS FOR JUSTICE
Under the Jamaican Constitution, both the Executive and the Legislature are deeply entrenched and
strongly protected but not the judiciary. Section 110, the relevant clause in the Constitution, is not
deeply entrenched. The right of appeal to the Privy Council may be removed by a simple majority
vote in the Parliament. However the Government has conceded that a two-thirds majority of Parliament
is a required to ensure the adoption of the CCJ as Jamaicas final appellate court in order to provide
protection for the Judiciary.
It would take a referendum to change the executive power, for example for Jamaica to become a
republic by replacing the Queen with a President; and it would take a referendum to change the
legislative power of the Parliament. Natural justice demands that it should take a referendum to
change the judicial power by removing the right of appeal to the Privy Council. The Government
should not take away the citizens right without asking the people of Jamaica.
While JFJ has seen no reason to doubt the integrity of the current members of the CCJ, JFJ remains
concerned, however, that in engineering the CCJ as our final appellate court, CARICOM leaders may
eventually tinker with the framework of the court to engender a jurisprudence that is favourable only
to their philosophy. The leaders may in fact alter the terms of the Regional Judicial Services
Commission and the treaty of Chaguramas by simple majority decision and this may alter the
circumstances of the operations of the court. The citizenry must be vigilant in preventing political
interference with the judiciary, be it local or regional.

33
ONONAIWU & JONES
However, the Board's decision has become mired in myths and
criticism. Once those myths are stripped away, the essence of the
Board's decision remains. It is not correct. The Board adopted a
questionable "difference of substance" test. Rather, a comparison
between the independence of the Privy Council and the CCJ was
required. Under that approach, the CCJ may have prevailed. In
any event, the linchpin of the Board's decision was the risk that the
current international arrangements would be amended so as to
weaken the independence of the CCJ, with a consequential impact
on Jamaica courts. That risk did not exist.
34
Even if CARICOM governments were to agree upon amendments
targeting the independence of the CCJ, those amendments could
not become part of Jamaican law. They could not be adopted by
the Minister, who would be bound by the constitutional right to fair
trial, as well as constitutional implications of judicial independence.
Even if he or she persisted, the same constitutional norms would
prevent the Jamaican Parliament from proceeding. It would not
matter if the amendments subsequently entered into force on the
international plane. Jamaica law would remain unaffected, as the
CCJ would have ceased to be the body engaged by the law and
would thus have lost jurisdiction in Jamaican cases.
35
Regardless of whether the authors are correct, the Board's decision
is no barrier to Jamaica's adoption of CCJ appeals. The Jamaican
Parliament could now install the CCJ as the country's final
appellate court, by a simple majority. It could merely reintroduce
the original Bills. It could then negate the risk that originally
motivated the Board by including an additional provision in Part 3
of Chapter VII of the Constitution that would emphasise the fact
that measures undermining the independence of the CCJ cannot
form part of Jamaican law.

36
THE MOST HON PJ
PATTERSON
ADDRESS BY THE MOST HON. P. J.
PATTERSON, ON, OCC, PC, QC
FORMER PRIME MINISTER OF
JAMAICA ESTABLISHNG OUR FINAL
COURT: ONE STEP AT A TIME AT THE
BAR ASSOCIATION CONFERENCE
HILTON ROSE HALL RESORT,
MONTEGO BAY, FRIDAY, NOVEMBER
15, 2013
The judgment could not have pointed
out more definitively the safest path
of final resort, should all other
attempts fail.
It reveals how the roadblock resulting
from political obstinacy can be
effectively dismantled.
Once this is done, the Sovereign
Parliament of Jamaica can
subsequently decide whether a three-
tiered system should be restored, and
if so, when and how.
37
 AN UNCONSTITUTIONAL
CONSTITUTIONAL AMENDMENT?
38
 IJCHR-amended using
LETS TAKE THE ordinary amendment
process but it amounted
OBVIOUS FIRST! to an infringement of
Chapter 7

YES, if the amendment Bahamas Methodist

Church- except this does not
does not meet the manner
apply if the process is not
and form requirements of based in the Constitution but
the Constitution internal parliamentary rules
39
NOW IT GETS HARDER!

Is it enough that Can a constitutional

parliament met the amendment duly
manner and form passed be
requirements? unconstitutional?

Can judicial review cover an

amendment to the constitution
that has been made pursuant
to the provisions of the
constitution regarding
amendment of the constitution?
(Barak)

40
EASIER ANSWER! ETERNAL CLAUSES
There may be an eternal clause in the constitutions that makes certain provisions
unamendable.
e.g. TURKISH CONST., 1982, art. 4: The provision of Article 1 of the Constitution
establishing the form of the state as a Republic, the provisions in Article 2 on the
characteristics of the Republic, and the provision of Article 3 shall not be amended,
nor shall their amendment be proposed.
These clauses dont exist in the Caribbean

41
A TURNING POINT IN THE COMMONWEALTH:
KESAVANANDA BHARATI V. STATE OF KERALA
Various amendments to the India Constitution gave parliament the power to change the
constitution, despite anything found in the Constitution.
Supreme Court held that amendments to the Constitution were unconstitutional, because they
violated the basic structure of the Constitution. Amendments that violate the basic structure of
the Constitution are unconstitutional despite the fact that the formal conditions for amendment
of the Constitution (laid down in article 368 of the Constitution) had in fact been fulfilled. The
justices had different opinions regarding the reason behind the ruling. Some based their
positions on the interpretation of the word amend in article 368. In their opinion, the
authority to amend the Constitution does not include the authority to replace the Constitution
with a new constitution. Other justices based their position on the interpretation of the
Constitution as an entirety. According to their approach, in addition to the express provisions
there are also implicit provisions, according to which the authority to amend the Constitution
does not include the authority to change the basic structure of the Constitution.
Later case law went down the path of Kesavananda. In Indira

42
IS MEETING THE MANNER AND FORM REQUIREMENTS ENOUGH? CAN A CONSTI TUTIONAL
AMENDMENT DULY PASSED BE UNCONSTITUTIONAL?
BOWEN V AG 2009
Not if it is destructive of the Basic structure is an
basic structure of the affirmation of
Constitution supremacy of the
constitution

Bulwark against the Elements of the basic

vagaries of the election
whose outcome may give
the required majorities
for change
structure includes:
Protection of fundamental
rights
Separation of powers
Rule of law

43
BARAK: ARGUMENTS FOR JR OF A
CONSTITUTIONAL AMENDMENT
substantive standards can be implied from the provisions regarding the amendment of the constitution. This question
arises primarily in the case of constitutions that are easy to amend.
Can it not be said that the term amendments indicates that the amended document is left standing? According to this
approach, the amendments clause in the constitution cannot serve as a source for the establishment of a new
constitution.
However, if the substantial requirement regarding the basic structure of the constitution is entrenched not only in the
provision on the amendment of the constitution but in the entire constitution, then the amendment of the amendments
provision is insufficient, as the amendment itself would be unconstitutional. If the requirement regarding the basic
structure indeed arises from the language of the entire constitution, then a new constitution is necessary in order to
remove the requirement regarding the basic structure.
There is no real difference between judicial review of the constitutionality of a regular statute and judicial review of
an amendment to the constitution. In both cases, the judicial review is intended to safeguard the constitution and its
(express or implied) content. And when the court defends the constitution and prevents the use of the amendment
process to establish a new constitution, it safeguards the sovereignty of the people. This is true in general; it is
especially true in cases where the constitution is easily amended. The natural role of the court in a modern democracy
is to protect the constitution and to prevent bodies that were created by the constitution from exceeding their
authority. The political character of judicial activity resulting in the annulment of an amendment to the constitution
44
should not tie the hands of the court. The court is not protecting itself: it is protecting democracy.
Those who wish to change the basic foundations of the constitution must do so not by changing
the constitution but rather by establishing a new constitution. The authority to establish a
constitution must be exercised in accordance with the fundamental principles and the
fundamental structure of the existing constitution. When an amendment changes the
fundamental principles and the fundamental structure, it removes the constitutional basis upon
which the entire edifice rests. The role of the court is to protect the basic structure and
fundamental values of the constitution.
Clearly, not every amendment of the constitution falls within this definition. The changes we are
dealing with are fundamental constitutional changes that alter the identity of the constitution
and the democratic character of the regime, including profound changes to the republican
character of the government and serious infringements of the separation of powers, the rule of
law, judicial independence, and the most fundamental human rights. Every constitution has its
own fundamental principles that characterize its fundamental structure.

45
ARGUMENT AGAINST: DEMOCRACY
If judicial review of a constitutional amendment is recognized, such recognition should
be laid down in an express provision of the constitution. It should not be introduced
impliedly.

46