Unconstitutional Constitutional Amendment Doctrine Research Articles

A Doctrinal Approach to Unconstitutional Constitutional Amendments: Judicial Review of Constitutional Amendments in Sweden

The delegation theory of unconstitutional constitutional amendments, a limited theory of unamendability – Applying a doctrinal approach to justify unconstitutional constitutional amendments – Introducing a typology of unconstitutionality – The practical deficiencies and internal inconsistencies of the delegation theory – The limited role of the doctrine of unconstitutional constitutional amendments in the Swedish context – The redundancy of constituent power as a legal concept

Pacifying the Crises of (Un)Constitutional Amendments: The Case of Zimbabwe’s Amendment (No.1) and (No.2) Acts

Zimbabwe enacted a new constitution in 2013 amid high hopes for a turn towards a new era of democratisation, constitutionalism, and adherence to the rule of law. However, subsequent to 2013, Zimbabwe entered an era of regression on the democratic values espoused by the new constitution. The apogee of the regression is the amendments of the Constitution, neutralising some of its most progressive elements. This paper analyses two recent constitutional amendments: amendments no. 1 and no.2, in the Zimbabwean context pertaining to judicial appointments and terms of office. It also evaluates the potential of judicial review of substantive validity of constitutional amendments through the lens of the doctrine of ‘unconstitutional constitutional amendments’. This is in defence of core constitutional values such as equal protection of the law, rule of law, separation of powers, and democratic participation. The central argument of this paper is that the amendments, which contravene the values espoused by the Constitution, are substantively unconstitutional because they precipitate a multi-pronged crisis of constitutionalism. These crises are embodied in the indirect control of the judiciary by the executive, and in ‘rule by law’ replacing ‘rule of law’. This article proposes that these crises can be remedied by exploring the doctrine of unconstitutional constitutional amendments.

“With a little help from the people”: Actio popularis and the politics of judicial review of constitutional amendments in Colombia 1955–90

Abstract This article examines the reasons behind the consolidation of the Supreme Court of Colombia’s authority during the second half of the twentieth century as the ultimate umpire of amendments’ constitutionality. After analyzing the case law of the Supreme Court between 1955 and 1990 and the political environment in which it rendered its decisions, the article claims that the Court managed to cement its power to review amendments thanks to the presence of a novel constitutional experiment, as well as to the existence of certain political conditions. With respect to the first factor, an actio popularis (by which any citizen had the right to petition the Court and challenge the constitutionality of legislation) granted the Supreme Court a constant flow of cases that allowed it to entertain and adjudicate on citizens’ petitions questioning the constitutionality of amendments. Regarding the latter factor, democracy and political pluralism gave the Court some room to quietly consolidate its jurisdiction to review amendments and, eventually, quash some of them. The article concludes with a cautionary note on the success of actio popularis and the doctrine of unconstitutional constitutional amendments as deployed by the Supreme Court.

Why There? Explanatory Theories and Institutional Features Behind Unconstitutional Constitutional Amendments in Asia

This chapter reflects on the various chapters of the book. In so doing, it proposes numerous alternative and mutually reinforcing theories behind the adoption of the unconstitutional constitutional amendment doctrine in Asia: higher law background; correcting flaws in the democratic process; political and policy insurance and hegemonic preservation. It also reviews the recent debates in Israel, and suggests various institutional features that can explain why doctrines of implied limitations on constituent power, such as the Basic Structure Doctrine, were developed in specific jurisdictions: flexibility of the amendment procedure, party or executive dominance; the political and amendment culture, and the absence of effective supra-national institutions.

Critical Analysis of the Constitutional Amendment Bill 2020 (BBI) in Relation to the Doctrine of the Basic Structure of the Constitution and the Doctrine of Unconstitutional Constitutional Amendments: What Is the Bills Effect on the ‘Immutable’ or ‘Eternal’ Clauses in the Constitution?

This paper seeks to put to test the Constitutional Amendment Bill of 2020 dubbed BBI, by subjecting it to the lenses of the doctrine of the basic structure of the constitution and the principle of unconstitutional constitutional amendments.

שמירת הדינים – יחסינו לאן? על עתידה של שמירת הדינים בדין הישראלי <br>The Future of the "Validity of Laws" Clause in Israel's Basic Law: Human Dignity and Liberty

תקציר בעברית: המאמר מבקש להתמודד עם הבעיות שנובעות מפסקת שמירת הדינים בחוק יסוד: כבוד האדם וחירותו. המשמעות המעשית של שמירת הדינים היא הענקת פטור למחוקק מפני ביטול חקיקה ישנה לאור סתירתה להוראות חוק היסוד. אמנם, שמירת הדינים התקבלה תוך פשרה פוליטית נחוצה, אך על אף שהפשרה עסקה בנושאי חקיקה מסויימים, שמירת הדינים שהתקבלה היא גורפת ומגנה על הדין הישן כולו. בפועל, כל עוד שמירת הדינים לא בוטלה, גם בעוד חמישה עשורים מהיום לא ניתן יהיה לבחון באופן חוקתי אף דין שחוקק לפני מרץ 1992, ובמסגרת זו אף פקודות שנחקקו על ידי המשטר המנדטורי עוד לפני קום המדינה. תוצאה זו פוגעת בהתפתחות הטבעית של המשפט, בהרמוניה המשפטית בין מערכת הדינים הישנה והחדשה, וביכולת של הרשות השופטת לפקח על הרשות המחוקקת כחלק מהפרדת הרשויות. בעיה זו מתעצמת לאור העובדה שהכנסת משמשת הן כרשות מחוקקת והן כרשות מכוננת, ובשל כך נעדרת תמריץ לבטל את שמירת הדינים מחד גיסא, ולתקן חקיקה ישנה בעייתית מאידך גיסא. במאמר מוצגים שלושה פתרונות אפשריים שניתן ליישם על מנת לאפשר בחינה חוקתית של הדין הישן, שמוגן כיום על ידי שמירת הדינים. ראשית, יישום פרשנות תכליתית מחודשת לשמירת הדינים, כך שתחול רק על חקיקה בנושאים מסויימים (דת ומדינה, זהותה היהודית של המדינה וביטחון). פרשנות זו תאפשר בחינה חוקתית של דינים ישנים אחרים, שאינם קשורים לנושאים אלו. שנית, בחינת הדין הישן לאור עקרונות היסוד של השיטה והאופן בו פותחו במהלך השנים בבית המשפט העליון. לבסוף, ביטול שמירת הדינים עצמה על ידי דוקטרינת התיקון החוקתי הבלתי חוקתי. English Abstract: The article seeks to address the problems arising from the Validity of Laws clause of the Israeli's Basic Law: Human Dignity and Liberty. The practical meaning of the clause is to grant a exemption to the legislature against the repeal of old legislation in light of its contradiction to the provisions of the Basic Law. Admittedly, the clause was accepted with the necessary political compromise, but although the compromise dealt with certain matters of legislation (mainly separation of state and religion), the clause obtained was across-the-board and protected the entire of the existing law. In practice, as long as the clause exsits, it will not be possible to constitutionally examine any law enacted before the Basic Law was passed (in March 1992). This result impairs the natural development of the law, the legal harmony between the old and the new legal system, and the ability of the judiciary to oversee the legislature as part of the separation of powers. This problem is exacerbated by the fact that the Knesset serves as both a legislative and constitutive authority, and therefore lacks an incentive to repeal the clause on the one hand, and amend problematic old legislation on the other. The article presents three possible solutions that can be implemented to allow for a constitutional examination of the old law, which is currently protected by the clause. First, the application of a renewed interpretation of the clause, so that it will apply only to legislation on certain issues (religion and state, the Jewish identity of the state etc.). This interpretation will allow for a constitutional examination of other old laws, unrelated to these issues. Second, an examination of the old law in light of the basic principles of the legal system and the way in which they have been developed over the years in the Supreme Court of Justice. Finally, complete abolition of the clause itself by the doctrine of unconstitutional constitutional amendments.

The causes and consequences of a judicialized peace process in Colombia

Abstract This article focuses on one striking feature of the Colombian peace process with the Revolutionary Armed Forces of Colombia—People’s Army (FARC): a very high level of judicialization, as shown through the many decisions issued by the Colombian Constitutional Court that have examined core elements of the process. It argues that this high level of judicialization is explained not only by the generally activist role conception of the Court, but also by specific doctrines it developed, including a robust incorporation of international law and an unconstitutional constitutional amendment doctrine, which essentially made judicialization inevitable. Since these doctrinal devices are spreading, they may portend increasingly judicialized peace processes in other countries as well. Normatively, judicialization of ongoing peace processes raises clear risks, particularly of destabilization. But for the most part, the Colombian Constitutional Court has avoided these risks and instead has stabilized the process in important ways, by insulating it from both international pressure and domestic political shifts. The Court has also injected important values into the process, especially regarding the rights of victims of the internal armed conflict. Thus, the case study demonstrates that at least under certain conditions, judicialization may have a beneficial impact on the substance and durability of peace processes.

A Contextual Approach to Unconstitutional Constitutional Amendments: Judicial Power and the Basic Structure Doctrine in Malaysia

AbstractThis article takes a contextual approach to analyzing judicial engagement with the doctrine of unconstitutional constitutional amendments. It argues that in assessing judicial reception of the basic structure doctrine, and the content of the constitutional identity that such a doctrine seeks to preserve, a normative universalist or even functionalist approach is not sufficient. Instead, such a doctrine should be justified and understood contextually. It is necessary to contextualize constitutional identity in order to give it a robust character, rather than assuming a set of characteristics most often associated with liberal democratic constitutionalism and without understanding the political, social, and economic conditions in which the constitution operates. This article thus uses the example of Malaysia and how the courts have engaged with the basic structure doctrine to show how a contextual approach could have greater explanatory effect, including on why certain issues are more strongly contested in some countries than in others.

Democratizing the Doctrine of Unconstitutional Constitutional Amendments: The Puzzle of Amending the Judiciary Branch

Abstract The increasing interest of legal academia on the doctrine of Unconstitutional Constitutional Amendments and its growing enforcement by the judiciary in different jurisdictions has started to normalize a doctrine that was considered controversial and extraordinary. This paper seeks to cast some doubts on the use of this doctrine, especially when the Court that enforces it is the subject of the amendment itself. In the first section it will question the conceptual foundations of the doctrine by recourse to legal theory, focusing not only on the idea of constituent power, but also on those of the rule of law and accountability. In the second section, some comparative cases of unconstitutional constitutional amendments will be analyzed, focusing on those where the judiciary itself was the subject of the amendment. Finally, from a normative and conceptual standpoint, a dialogic approach to the application of the doctrine will be proposed, to mitigate the fact that Constitutional Courts can become an unaccountable accountability-holder.

Democratizing the Doctrine of Unconstitutional Constitutional Amendments: The Puzzle of Amending the Judiciary Branch

Abstract The increasing interest of legal academia on the doctrine of Unconstitutional Constitutional Amendments and its growing enforcement by the judiciary in different jurisdictions has started to normalize a doctrine that was considered controversial and extraordinary. This paper seeks to cast some doubts on the use of this doctrine, especially when the Court that enforces it is the subject of the amendment itself. In the first section it will question the conceptual foundations of the doctrine by recourse to legal theory, focusing not only on the idea of constituent power, but also on those of the rule of law and accountability. In the second section, some comparative cases of unconstitutional constitutional amendments will be analyzed, focusing on those where the judiciary itself was the subject of the amendment. Finally, from a normative and conceptual standpoint, a dialogic approach to the application of the doctrine will be proposed, to mitigate the fact that Constitutional Courts can become an unaccountable accountability-holder.

Democratic Erosion, Populist Constitutionalism, and the Unconstitutional Constitutional Amendments Doctrine

Abstract The world is experiencing a crisis of constitutional democracies. Populist leaders are abusing constitutional mechanisms, such as formal procedures of constitutional change, in order to erode the democratic order. The changes are, very often, gradual, incremental, and subtle. Each constitutional change, on its own, may not necessarily amount to a serious violation of essential democratic values. Yet, when examined in the context of an ongoing process, such constitutional changes may prove to be part of the incremental, gradual process of democratic erosion in which the whole is greater than the sum of its parts. This Article explores how courts can respond to such constitutional changes. We argue the Unconstitutional Constitutional Amendment Doctrine should be adapted to respond to existing constitutional practices that utilize incremental and subtle amendments to dismantle the democratic order. We suggest that an aggregated judicial review should be developed. We must also rethink the automatic immunity – the result of two hundred years of revolutionary constitutional theory – provided to complete constitutional replacement from constitutional restrictions and scrutiny. Finally, as opposed to the instinct to require judicial self-restraint with respect to constitutional changes that concern the judiciary itself, we suggest that this is perhaps the type of changes that require strictest scrutiny.

Democratic Erosion, Populist Constitutionalism and the Unconstitutional Constitutional Amendment Doctrine

The recent phenomenon of democratic backsliding is characterized, among other things, by what has been referred to in the literature as “constitutional capture”, “constitutional retrogression”, “abusive constitutionalism” or “populist constitutionalism”. These terms describe the practices by which populist politicians, once in power, employ constitutional law to promote their goals and weaken the state’s democratic values, mechanisms and institutions. We examine the applicability of the Unconstitutional Constitutional Amendment doctrine (“the Doctrine”) in the context of democratic backsliding. We argue that the Doctrine has the potential of guarding against the use of constitutional change tools to undermine democracy. However, we also argue that the characteristics of democratic backsliding present special challenges for the application of the Doctrine. The first challenge derives from the incremental nature of democratic backsliding, which renders it difficult to identify the benchmark for applying the Doctrine. The second challenge regards the shortcomings of the Doctrine in responding to constitutional replacement, and, more broadly, the allegedly limited justifications for applying the doctrine when constitutional changes are made using direct democracy measures, such as referendums. The third challenge derives from the manner in which populist constitutionalism targets the judiciary. We outline and analyse these challenges and offer guiding principles and adjustments for applying the Doctrine in response to democratic backsliding. We distinguish between normative and strategic considerations for applying the Doctrine, and while we do not dismiss the latter, we focus on the former. With regards to the challenge of incrementalism, we argue that Courts should consider the accumulative or aggregated effects of a series of constitutional amendments. With regards to constitutional replacements or amendments that were adopted following direct democracy measures, we argue that Courts should focus on examining the depth and inclusiveness of the process. With respect to judicial independence, we argue that despite the strategic risks associated, constitutional changes that infringe upon judicial independence should be especially scrutinized.

From an unconstitutional constitutional amendment to an unconstitutional constitution? Lessons from Honduras

Abstract:The unconstitutional constitutional amendment doctrine has emerged as a highly successful, albeit still controversial, export in comparative constitutional law. The doctrine has often been defended as protecting a delegation from the people to the political institutions that they created. Other work has noted the doctrine’s potential utility in guarding against abusive constitutionalism. In this article, we consider how these justifications fare when expanded to encompass claims against the original constitution itself, rather than a later amendment to the text. That is, beyond the unconstitutional constitutional amendment doctrine, can or should there be a doctrine of an unconstitutional constitution? Our question is spurred by a puzzling 2015 case from Honduras where the Supreme Court held an unamendable one-term limit on presidential terms, as well as protective provisions punishing attempts to alter that limit, to be unconstitutional. What is particularly striking about the case is that these provisions were not later amendments to the constitution, but rather parts of the original 1982 constitution itself. Thus, this article examines the possibility of ‘an unconstitutional constitution’, what we predict to be the next trend in global constitutionalism.

Presidential Term Limits in Latin America: A Critical Analysis of the Migration of the Unconstitutional Constitutional Amendment Doctrine

Abstract Across a number of countries including Venezuela, Colombia, Bolivia, Ecuador, Honduras, Costa Rica, and Nicaragua, incumbent presidents in Latin America have recently sought to amend their constitutions to eliminate or weaken presidential term limits. In some cases, these efforts to extend terms have been part of broader projects to consolidate power, weaken other state institutions, and tilt the electoral playing field in favor of incumbents. From a legal perspective, these cases are interesting because they highlight the limits of tools limiting constitutional change, such as eternity clauses and the unconstitutional constitutional amendment doctrine, to constrain potentially anti-democratic or anti-liberal forms of constitutional change. Although constitutional texts in most of these cases gave courts ample ammunition to reject attempts to eliminate term limits or at least to force those changes down more demanding paths, courts did not stand in the way of most of these efforts and in some cases even used the doctrines to eliminate rather than protect term limits. The case studies highlight the extent to which the “superficial” spread of doctrines controlling constitutional change may fail to block, and indeed may promote, forms of constitutional change that threaten liberal democratic constitutionalism. It also suggests possibilities for deepening the effectiveness of transnational dialogue on these issues.

Unconstitutional Constitutional Amendments in European Union Law: Considering the Existence of Substantive Constraints on Treaty Revision

The issue of unconstitutional constitutional amendments is extremely topical in the field of national and comparative constitutional law. In a recent article (2013), Roznai signals that ‘the global trend is moving towards accepting the idea of limitations—explicit or implicit— on constitutional amendment power’. But what about the ‘supranational’ EU? Would there be room to argue that substantive limitations of amendability—explicit or implicit—also exist as regards the EU Treaties? Furthermore, if so, would the Court of Justice of the European Union (CJEU) have the competence to enforce such limits? These questions are the central focus of this article. We argue that accepting the idea of substantive requirements of Treaty revision may be one of the next important steps in the ongoing process of EU constitutionalisation. In the first part of the article, we explore what kind of arguments are being used to justify a doctrine of unconstitutional constitutional amendments in national systems. Next, we ascertain to what extent such arguments can be used to justify a doctrine of unconstitutional constitutional amendment in EU law. In conclusion, we argue that it is quite conceivable that certain EU Treaty amendments would indeed be deemed to be a violation of the Treaties. Moreover, we contend that it is not unimaginable that the CJEU will assume the power to substantively review amendments to the EU Treaties, in cases where the Member States would choose to put forth suspect revisions to these documents.

Conventions of Unamendability: Unamendable Constitutional Law in Politically Enforced Constitutions

Legal scholarship on the unamendability of constitutional provisions tends to focus on legal systems with a strong tradition of judicial review of legislation. Legal systems such as the United Kingdom and The Netherlands, where the constitutionality of laws is a matter for the political branches and not for the courts, are routinely ignored. They do not fit existing perceptions of constitutional unamendability and arguably fall well outside the categories of either explicit or implicit constitutional unamendability. Nonetheless, these ‘politically enforced constitutions’ still contain mechanisms of unamendability, be it of an informal nature. These take the shape of judicial or institutional disobedience. The doctrine of unconstitutional constitutional amendments thus becomes relevant to a broader range of constitutional systems. However, this type of unamendability requires a more subtle approach. It does not emerge from constitutional provisions, whether explicit or not, but rather occurs in the form of a constitutional convention of unamendability. The question whether parts of the constitution should be regarded as unamendable thus cannot be solely couched in the all-or-nothing terminology of legal rules. Instead, conventions of unamendability, due to their principle-based character, may be subject to changing circumstances and exceptions. Existing literature on constitutional conventions may be used as a model in order to build a framework of analysis for the concept of constitutional unamendability in politically enforced constitutions.

Unconstitutional Constitutional Amendments in European Union Law: Considering the Existence of Substantive Constraints on Treaty Revision

The issue of unconstitutional constitutional amendments is extremely topical in the field of na-tional and comparative constitutional law. In a recent article (2013), Roznai signals that ‘the global trend is moving towards accepting the idea of limitations – explicit or implicit – on constitutional amendment power’. But what about the ‘supranational’ EU? Would there be room to argue that substantive limitations of amendability – explicit or implicit – also exist as regards the EU Treaties? Furthermore, if so, would the Court of Justice of the European Union (CJEU) have the competence to enforce such limits? These questions are the central focus of this article. We argue that accepting the idea of substantive requirements of Treaty revision may be one of the next important steps in the ongoing process of EU constitutionalisation. In the first part of the article, we explore what kind of arguments are being used to justify a doctrine of unconstitutional constitutional amendments in national systems. Next, we ascertain to what extent such arguments can be used to justify a doc-trine of unconstitutional constitutional amendment in EU law. In conclusion, we argue that it is quite conceivable that certain EU Treaty amendments would indeed be deemed a violation of the Treaties. Moreover, we contend that it is not unimaginable that the CJEU will assume the power to substantively review amendments to the EU Treaties, in cases where the Member States would choose to put forth suspect revisions to these documents.

Unconstitutional Constitutional Amendments

This paper deals with the question of an amendment to the constitution that has been made pursuant to the formal requirements of the constitution but deviates from its basic structure. The paper explores different views regarding this question in comparative law. It also examines the applicability ofthe doctrine of unconstitutional constitutional amendments in Israel.

The Challenge of Reconciling Constitutional Eternity Clauses with Popular Sovereignty: Toward Three-Track Democracy in Israel as a Universal Holistic Constitutional System and Theory

Since the concept of democracy made its premiere, popular sovereignty has always been one of its fundamental characteristics. Nevertheless, many democracies have adopted eternity clauses (non-amendable constitutional provisions) as well as the unconstitutional constitutional amendment doctrine (the judicial power to strike down amendments to the constitution on substantive grounds), seemingly betraying the established democratic tradition. Including eternity clauses in a constitution certainly poses a challenge to any democracy, namely that of resolving the tension between their freezing effect on the legal system and the democratic notion of popular sovereignty. The intuitive question is why bother? Why address this challenge in the first place rather than uprooting eternity clauses from the constitutional system altogether, thereby resolving the inner tension they generate? One answer is that eternity clauses are presumably here to stay. More to the point, however, is that their presence in a legal system is desirable, since their absence would leave a modern democracy vulnerable to irresponsible normative acts by an incompetent body of representatives. Although Israel's Basic Laws do not include formal eternity clauses, its legal system tends to limit the scope of amending power where the Zionist project is concerned, thereby freezing the imperfect founding formula of the Jewish state. As a result, Israel as a Jewish democratic state faces the same challenge of resolving the tension between the freezing effect and popular sovereignty. This article argues that this challenge can be successfully met as soon as eternity clauses are integrated within a three-track democracy—a holistic constitutional system and theory. As a constitutional system, it distinguishes between three decision-making tracks and identifies the basic norm of the legal system with a nation's collective will or dynamic founding narrative. As a constitutional theory, it justifies constitutionalism and judicial review mainly for the purpose of regulating a nation's evolution. Eternity clauses play a pivotal role in three-track democracies by blocking the first decision-making two tracks in order to force revolutionary movements to engage in the consensual third track. This protects society from a unilaterally-imposed revolution—an act liable to be detrimental to the delicate evolutionary process.