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The Constitutional (Amendment) Bill No. 1 of 2015 cannot be lawfully passed by a simple majority- Anil Nandlall

Last Updated on Wednesday, 8 July 2015, 16:26 by GxMedia

This Bill seeks to amend the Third Schedule of Article 222A of the Constitution by adding certain entities to the said Schedule. There are many complex implications which arise from this, ex facie, innocuous amendment. However, in this missive, I will only address the unconstitutionality of its impending passage in the National Assembly scheduled for the 9th July, 2015.

It is more commonsense and logic than law, that the Schedule to an Article in the Constitution is part of that Article. Therefore, the Third Schedule is part of Article 222A.

By Article 164, the Constitution provides how it can be amended. Certain provisions in the Constitution can be amended by a simple majority, some by a two thirds majority and some by referendum only. The device by which these Articles are protected from alteration except by certain required level of voting in the National Assembly or referendum, is called “entrenchment”. The more important the particular Article, the more entrenched it is, meaning that it enjoys a higher level of protection which translates into a requirement of a greater number of votes for its lawful alteration.   

Article 164 lists Article 222 as one of the Articles which can only be changed by a 2/3 majority vote of Members of the National Assembly.

In the constitutional reform process of 2001, Article 222 was amended (by a 2/3 majority) by the addition of Article “222A” and as I said earlier, the Third Schedule is part of Article 222A. Therefore, Article 222A is a part of 222 and can only be amended by a 2/3 majority. It would defy legal logic that Article 222A which required a 2/3 majority to come into existence, can be altered and worse yet repealed altogether, by a simple majority.

It was the 1980 Constitution that was amended in 2001. That Constitution has 232 provisions. That Constitution came into being by virtue of a referendum. No new Article can be added to those 232 provisions without resort to a referendum. It is common knowledge that there was no referendum in 2001. For this simple reason, Article 222A is necessarily a part of Article 222. If it was a new and additional provision to the Constitution, it would mean that the 1980 Constitution would have been expanded to 233 provisions. That result could only have been lawfully achieved by a referendum.    

Faced with this Constitutional quandary, those who were engaged in the constitutional reform process utilized alphabetical capital letters and worked within the existing numerical provisions of the Constitution to achieve their objectives. Thus, each amendment bore a capital letter and was attached to an existing provision and necessarily, is and must remain part of that Article if it is to be valid. So you have “222A” and not“223” but “222A” must necessarily be part of 222 if it were to enjoy any validity.

Therefore, Article 222 and by extension 222A and the Third Schedule cannot be amended by a simple majority but only be a 2/3 majority. The APNU+AFC do not have a 2/3 majority in the House and therefore, they cannot lawfully pass that Bill without the support of votes from the opposition. If they attempt to pass this Bill by a simple majority, they will be violating Article 164 of the Constitution if they do so and the Bill would accordingly be unconstitutional.