Eternity Clauses Research Articles

From the national state to the member state and return?

For the first time, al legal interpretation of the German Basic Law (Grundgesetz) has attested as being friendly towards European Law. The Court has opened the Federal Republic of Germany to European challenges, describing it as an member state. At the same time, however, the Court’s ruling imposes clear limits on the surrendering of sovereignty, perceiving the state as a nation state. There is not much to be said against the notion that integration must be democratically accountable; but it remains to be seen whether the so-called “identity check” under the “eternity clause” of Art. 79 para 3 Grundgesetz will result in a more responsible approach to European law.

The Constitutional Reform Proposal of the Turkish Government: The Return of Majority Imposition

The package of constitutional reforms just recently offered to the Grand National Assembly1 by the Turkish government seems highly attractive in many respects. It is the whole that should be rejected by liberals and democrats in and outside of Turkey. After the 2008 decision of the Turkish Constitutional Court invalidating amendments to articles 10 and 42 of the Turkish constitutions, the so-called headscarf amendments, and the refusal of the same Court to dissolve the AKP (Justice and Development Party), the Government led by that party had three choices.2 The first, indicated by the Court’s return to the language of the original constituent power, was entirely unrealistic and to me and most Turks undesirable, namely to sponsor a program of revolutionary transformation where the constitutional regime of 1982 would be replaced outside its own rules of change. The point of the conservative Court even raising this idea was merely logical and rhetorical. When it was said that certain kinds of changes, as the alteration of the eternity clauses, namely articles 1–3 of Constitution, as entrenched by art .4, would require a return to the original constituent power, and thus by implication would be a revolution, the point was to indicate all the more strongly what could not be done through ordinary amendments. Yet, to tell the Turkish people that they must stage a revolution if they wish to make an entirely new constitution was, to say the least, unfortunate and in fact erroneous. Nevertheless, in a toned down version, the same type of rupture was actually recommended by the noted constitutional scholar Serap Yazici in a recent book3 where she claimed that a democratically elected assembly need not be bound by either the eternity clauses nor even the procedures indicated by article 175, the amendment rule of the Turkish Constitution. While she was very right in suggesting that the highly undemocratic 10% threshold in elections should be abandoned, we can still be grateful that the AKP has never imagined that it could take the road of explicit legal rupture in constitution making. As I told a meeting last December in Istanbul: I do not want to be in this country when anyone tries this method! The second option was to return to a consensual form of constitution making, a method, also hinted at by the Constitutional Court in the same 2008 decision, that could have led to the creation of a package that all Turkish political forces could identify with to some extent. Such a solution would also mean that perforce there could not be 110 deputies to apply to the Court for a review of the amendments or of the new constitution. This was the position I represented in the debates. My idea was to draw the non-parliamentary parties into a consultative assembly (a “convention”) elected by straight proportional representation without a cut-off, that would present an initial draft for a civilian constitution to a new Grand National Assembly still structured by the (otherwise undesirable) undemocratic 10% threshold. In any case, the AKP government never showed any interest in any consensual alternative, including a return to the parliamentary All Party Accord Commissions of yesterday (that is prior to 2002). What the AKP government has chosen instead is a return to the method of majority imposition, which has been its method in constitutional politics since the 2007 crisis over the presidency. Of course the Constitutional Court did allow (in spite of the leading narrative about the quorum affair) that imposition in 2007 by opening the way to a referendum that

‘An Association of Sovereign States’

German Constitutional Court decision of 30 June 2009 on the compatibility of the Lisbon Treaty with the German Constitution – Continuing sovereignty of member states under the EU Treaty – Extended constitutional limits to European integration (‘eternity clause’) under German Constitution, but these are not violated by Lisbon Treaty – Composition of European Parliament does not satisfy fundamental requirement of democracy but does not violate German Constitution since EU is not a state – Critical assessment of conceptual foundations of decision

Germany: The Electronic Eavesdropping Case

Human dignity—inviolability of the home—Constitutional amendments and the Eternity Clause—Interpretation of constitutional amendments—German Constitutional Court rules on the implementation of electronic eavesdropping measures—decision of March 3, 2004

Athenian Democracy and Legal Change

The ancient Athenians regarded their ability to modify their laws as a fundamentally democratic trait; indeed, the faculty of “pragmatic innovation” was well known throughout the Greek world and was widely viewed as a key advantage that Athens had over its rival, Sparta. The Athenian commitment to legal change endured despite disastrous consequences at the end of the fifth century, a comprehensive revision of the laws, and the complication of legal procedure in the fourth century. In an apparent paradox, however, the Athenians also used “entrenchment clauses” to make certain laws immutable. Through analysis of entrenched laws and decrees, it is shown that the innovativeness that made Athens enviable also made it a difficult ally; entrenchment enabled the Athenians to make its commitments more credible. Although today entrenchment is typically used to protect crucial constitutional provisions, such as rights, in the ancient world it served a strategic purpose.