KELSEN'S THEORY OF 'NECESSITY' TO AMEND THE CONSTITUTION WITH A SIMPLE MAJORITY

By Wakeley Paul, Esq.

If, in a democratic setting, the element of 'necessity' warrants the change of a constitution with a simple Parliamentary majority, then constitutions with the usual requirement of a 2/3 majority to amend or replace them become meaningless. Any party with a simple majority desirous of some change to favor itself will hold sway over the Constitution. If a simple majority can cherry-pick changes to suit their own ends, why have a constitution at all?

If it is argued that, since everyone seeks a particular change for differing reasons, that change is warranted. Everyone may seek to end a Presidency on top of the pyramid with unsavory powers at his or her command, but does it end there?

Does a unanimous desire to amend one or more particular aspects of the Constitution justify change of those features of the Constitution without a 2/3 majority in parliament? The flaw in that argument is that, if you cannot get a 2/3 majority in parliament, what makes one conclude that the global desire is restricted to only those aspects of the Constitution that are selected for change? One can be dissatisfied with the Executive Presidency, but not with that alone.

The President may seek to abolish the Executive Presidency because she cannot be reelected to that post. The Tamil disenchantment with the Constitution goes beyond their dissatisfaction with the Executive Presidency. Their disenchantment with the Executive Presidency is accompanied with an equally strong disapproval of the non-recognition of equal rights in that Constitution. The abolition of one is meaningless without the abolition of the other. The two become inextricably intertwined. A Constitution with an elected Prime Minister, who is permitted to discriminate under the Constitution, does not make the abolition of the Executive Presidency in the least bit meaningful. It is in effect a face-lifting farce. It does not allow for those who seek equal rights the opportunity to value each new day as a gift and an opportunity. It does nothing to brighten the prospects of a bleak future. It merely permits a sleazy majority to make its laws and strike at will.

The greatest threat to peace and stability is religious fundamentalism. Preserving a Constitution that enhances this concept while abolishing an Executive Presidency is redundant.

Which brings us to the final concern. If a simple majority is used to amend a constitution which requires a 2/3 majority to do so, is anybody bound by the resultant constitution thereafter? If the lawmakers break their legal bounds to amend the constitution on the ground of necessity, why is anyone else limited by the Constitution to do or not do what they wish to do on the basis of necessity also? If the lawmakers act illegally, why should one respect the lawmaker or the laws they make? Have they any right to demand obedience to illegal and unconstitutional legislation passed on grounds of necessity? Does this necessity have limits, if so what are they? Is the boundary line "What's all right for me is not all right for you"?

Ah Ah, they say in reply, even if a policeman acts illegally, you must respect his decision and challenge the legality of his action later in court. One can in those circumstances challenge the legality of the policeman's actions in a court of law. Here the law is itself illegal. What law governs the doctrine of change by necessity? It justifies itself, leaving us with no legal recourse to even challenge it. That is the very essence of a dictatorship, not a democracy with legal protections to shield one from the tyranny of the majority. It is tantamount to abolishing the Constitution and having nothing to bind the rulers or hold them back. It will wind up hurting the Sinhalese, too.










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Posted August 14, 2004