Suteu, Silvia; (2021) Eternity Clauses as a Tool for Exclusionary Constitutional Projects. In: Abeyratne, R and Ngoc, SB, (eds.) The Law and Politics of Unconstitutional Constitutional Amendments in Asia. Routledge: London, UK.

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Abstract

This chapter argues that, despite its presumed democracy-protecting role, unamendability can itself be prone to abuse. Taking the constitutional politics surrounding unamendability seriously reveals it to be open to misuse and instrumentalised at the stage of constitutional drafting, as a consequence of dynamics in the constituent assembly or drafting body, or indeed later, when a basic structure doctrine may emerge. As we have long known about constitutional rigidity mechanisms in general, they will on balance serve to insulate elites and have been relied on to stifle much-needed democratic change rather than protect against democratic erosion. The Asian case studies surveyed amply show this ambivalence within the practice of unamendability. The chapter thus serves as a reminder that the constitutional contexts where unamendability has most appeal – divided, post-conflict, fragile – are also the contexts most likely to result in the abuse of unamendability. The paradox then is that it is precisely where it is most needed that unamendability may be most vulnerable, and most likely to provide cover for – rather than protect against – the erosion of democratic and rule of law safeguards.

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