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  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.
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  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”?
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A Report Of The Judgement Of The 16 Divisions Of The Court Of Appeal In Nigeria