Constitutional Identity Research Articles

Constitutional identity, identities and constitutionalism in Europe

AbstractThe notion of Constitutional Identity has attracted much scientific interest. However, it obscures, sometimes in a reductive manner, another legal reality: the existence of other identities, such as national, linguistic, and collective identities. Indeed, a reading of constitutions and constitutional court's decisions in Europe reveals a complex and evolving system of identities behind Constitutional Identity.This paper argues that identity is not just a political argument but also a legal and normative one. From a constitutional law perspective, two main categories can be distinguished: a real identity existing prior to the constitutional norm, and a fictitious identity subsequent to the constitutional norm. These identities are interdependent and are linked to each other; the constitutional courts referring to Constitutional Identity in order to maintain this interweaving. Therefore, Constitutional Identity plays an argumentative function and, by determining the interpretation of constitutional norms and the meaning of constitutional concepts, it gives birth to different forms of constitutionalism in Europe.

The constitutional identity of the member states: False evidence or constitutive element of a new architecture of the Union?

AbstractThe notion of ‘identity’ once seemed perfectly obvious and applied mainly to individuals. A spectacular evolution of the notion could have been considered in recent years. In the social sciences where it was associated with the notion of group but, after having invaded the public debate, it has now reached the law domain. It now appears in the debates and even the decisions of the constitutional courts of the member states of the European Union. This is a general movement which is part of a climate in which, to varying degrees, there is expressed dissatisfaction with regard to the operation of the institutions of the Union and, more particularly, their mode of creation of law, as soon as it benefits from the principle of primacy affirmed by the Treaties.The purpose of this article is to gather and evaluate the information available through the various case law and comments, in order to better clarify the notion of constitutional identity and assess its effectiveness. The concept remains contested, and its use has not yet resulted in significant consequences, but its study is an opportunity to suggest improvements in the dialogue between the constitutional courts and the Court of Justice of the European Union; to also ask whether the notion of ‘constitutional identity’ could not be a valuable tool in redefining the relationship between the Union and the Nations that compose it.

The Rule of Law as a Constitutional Mandate for the EU

The rule of law and the other values contained in Article 2 of the Treaty on European Union (Art 2 TEU) comprise the constitutional identity of the European Union (Union). These values form part of the Union’s very foundation. Art 3(1) and (6) TEU, in conjunction with Art 2 TEU, declare the Union’s aim to promote and pursue the rule of law as one of its core values. These provisions indicate that the rule of law is not only a constitutional principle but gives the Union a mandate to shape its policies accordingly in order to create an enabling ecosystem for the rule of law in the Member States. The Union may counter internal threats to the rule of law, but it can and should also take positive legal action to strengthen and consolidate the rule of law in the Member States by making use of its sectoral law-making competences. Proactively, the rule of law must be implemented and specified through Union secondary law and made the yardstick for legislative, administrative and judicial activity in the Member States.

Constitutional identity, the rule of law, and the power of the purse: The ECJ approves the conditionality mechanism to protect the Union budget: Hungary and Poland v. Parliament and Council

Constitutional identity, the rule of law, and the power of the purse: The ECJ approves the conditionality mechanism to protect the Union budget: Hungary and Poland v. Parliament and Council

Belonging in the New South Africa: Justice Froneman’s Search for a Fundamental Constitutional Identity for the People of South Africa

Belonging in the New South Africa: Justice Froneman’s Search for a Fundamental Constitutional Identity for the People of South Africa

The Doctrine of Supra-Constitutionality and Lithuanian Constitutional Identity

The aim of this article is to analyse the doctrine of supra-constitutionality, as developed by the Constitutional Court of the Republic of Lithuania, and its impact on the concept of the Lithuanian constitutional identity. The article deals with origins of the doctrine of supra-constitutionality, its content and consequences for the paradigm of constitutional law. This doctrine follows from the fundamental constitutional acts of the State of Lithuania, first and foremost, from the Act of Independence of 16 February 1918. From the standpoint of the current Constitution of 1992, these acts are considered to be pre-constitutional acts of constitutive (re-constitutive) nature, adopted by the supreme representative institutions of the People, which expressed the will to establish (re-establish) the independent democratic State of Lithuania. Therefore, the fundamental constitutional acts of the State of Lithuania are particular primary sources of the Lithuanian constitutional law. Their core provisions establish the unamendable fundamental constitutional principles – independence of the State, democracy, and the inherent nature of human rights. These principles have supra-constitutional force and cannot be denied by any constitution of Lithuania. On the contrary, it is the Constitution that derives from the fundamental constitutional acts and must unconditionally protect the irrevocable constitutional values. Thus, the element of supra-constitutionality present in the fundamental constitutional acts is not contrary to the concept of the Constitution, as supreme law. It is rather the cornerstone of the modern Lithuanian constitutionalism, which together with other constitutional traditions expressed by those acts allows us to define the constitutional identity of Lithuania.

WOJNA I POKÓJ W KONSTYTUCJI RP

Art. 116 of the Constitution of the Republic of Poland provides that a state of war and the conclusion of peace are declared by the Sejm acting in the name of the Republic of Poland. These two notions, having no constitutional definition, come under the rubric of established notions, i.e. concepts whose meaning derives from doctrinal findings and provisions of law, as well as from constitutional principles and values. The Sejm’s power to declare a state of war and, consequently, declare the conclusion of peace is part of Polish system-of-governance traditions. The parliament’s power to declare war actually characterizes most of the democratic systems, even if it could be argued that waiving this prerogative in practice characterizes it as well, reflecting the preponderance of the executive power in the domain of foreign policy. The wording of Art. 116 rules out an invasive war, also in the form of a war of prevention or a preventive self-defence. The Sejm may adopt the relevant resolution only in case of armed aggression against the territory of the Republic of Poland, or if international treaties impose an obligation of common defence against aggression, i.e. as a consequence of an act of aggression. Being of key importance for the constitutional regulation of war and peace, this constraint is commensurate with international law, which the Republic of Poland is required to respect pursuant to Art. 9 of the Constitution, and is also commensurate with the Preamble to the Constitution. In a democracy, acts of war – as an important government prerogative – may only be conducted pursuant to the relevant constitutional provisions which define the conditions that must be met for such acts to be legitimate. The conduct of a war, after all, does not warrant the suspension of the Constitution. A democratic state ruled by law must not conduct a war otherwise than on the basis, and within the constraints, of law – if it is to retain its constitutional identity. For the use of armed forces abroad to be commensurate with the Constitution, such use must not represent an act of aggression, nor can it represent any acts violating the principles of the United Nations Charter. If past experience is to be a guide, democratic constitutions are not capable of preventing anti-democratic changes in the system of governance, nor are they capable of preventing wars. War represents a failure of the Constitution, by destroying its foundation, the belief in inalienable and inherent dignity of the person.

Constitutional Identities and Traditions: A Conundrum for Comparative Lawyers

This paper elaborates upon a novel understanding of the interaction between constitutional traditions common to the Member States of the European Union and their domestic identity through comparative methodology. It puts forward a bottom-up understanding of identities through comparative case law, while grasping their potential contribution to the content of common traditions. It connects these issues to the ongoing discussion on the values of the EU through a circular model of mutual influence.

Aspirational and representative constitutional identity in Africa

AbstractThis article addresses the problématique of giving voice to homegrown traditions of constitutionalism in individual African countries. The scholarly discussion is combined with an applied concern about whether this could instil a wider grassroots embrace of the country’s constitution, thereby consolidating constitutionalism and ensuring longevity. The investigation is carried through the lens of two sub-categories of the concept of constitutional identity: a representative one that reflects a country’s particular political, social and cultural makeup, and an aspirational one that sets goals and ideals. The challenge, in both scholarly and applied terms, is how to ensure that a constitution instils a sense of public ownership by becoming more representative of a country’s underlying makeup while also giving voice to modern aspirations to protect and promote individual human rights, and in doing so, also becoming self-sustaining as the foundational basic law guiding future generations. Attention is paid not only to the forms of constitutions but also to their function in both reaching ideals (in the positive sense of success) and staving off pitfalls (in the negative sense of success). The article also discusses whether these are best achieved through gradual terms over time or through the sudden big bang of mega reforms.

A Constitutional Ethnography of Monarchy: Buddhist Kingship, “Granted Constitutionalism,” and Royal State Ceremonies in Thailand

AbstractThis paper defines constitutional ethnography as the cultural study of constitutionalism through its symbolic representations. By focusing on the materiality of constitutionalism as embodied in various state ceremonies such as ceremonies of “royal octroy” (constitution-granting ceremonies) as well as in state monuments honouring the Constitution, it strives to offer an ethnography of a polity’s constitutional identity. In this paper, I argue that in Thailand, Westernized Hindu-Buddhist state ceremonies and monuments using Westernized Hindu-Buddhist symbolism represent the Thai monarch as the ultimate law-giver holding permanent “constituent power” and therefore yielding extra-constitutional customary powers pre-existing the Constitution. This representation, in turn, informs Thai constitutional identity as defined incrementally by courts and jurists since the early twentieth century, which in turn informs present Thai constitutional interpretation. Therefore, this paper argues that the study of state ceremonies can be a useful entry point into the analysis of a “constitutional culture” shaping modes of constitutional interpretation.

The Progressive Monarchy of Bhutan: A Not-So-Absolute Monarchy to a Democratic Constitutional Monarchy

AbstractThis article provides a descriptive account of the evolution of the Bhutanese monarchy, and normative claims about its endurance and its nature, suggesting that the monarchy is both the expression of as well as the guardian of the country’s constitutional identity. Bhutan became a democratic constitutional monarchy by adopting the written Constitution in 2008 after a successful 100 years of hereditary monarchy. The willingness of successive monarchs to evolve based on changing times, their ability to ensure stability and continuity, and work for the benefits of the people and country guided by the principles of Buddhist kingship seem to have contributed not only in them benefitting from unqualified support of the people, but also in attaining the status of an expression of Bhutanese constitutional identity.

Supremacy of Parliament Undermined by Irregular Promulgation of Ordinances (A Case Study with Reference to Pakistan)

Pakistan claims to have parliamentary system of government under the Constitution of Pakistan 1973. First constituent assembly introduced a marvelous accumulation of supremacy of Islamic principles within the Constitutional framework based on ideology of liberation movement. The principles of this ideology have been given an overwhelming space in the preamble of Constitution. This claim boosted expectations of the nation to work out a political heritage of faith blended with proceeds of modern popular democratic culture. The governing system of State which had to strictly follow the Constitutional ideals seems to have misplaced its direction. It is in similarity of the colonial system against people struggled for their independence. Several reasons of failure have been alleged but the real cause is having no adherence for principles which the constituent assembly framed for the State Constitution. Resultantly, Constitutions of State (for no reason) were abrogated and held in abeyance twice under the executive decree. Dictatorial regimes promulgated series of irregular Ordinances and Provisional (un)Constitutional Orders. People and institutions needlessly were blamed for failure. State system took refuge in promulgation of Ordinances and autocratic Constitutional orders. Most of the Ordinances were used to implement arbitrary administrative actions and were given the colour of royal decree. Several Ordinances are being enforced regardless of their theoretical characteristics. This is reducing the parliamentary legislation inflicting serious blow to the grooming structure of State. The constitutionality of these Ordinances is still in question in superior courts. This study intends to determine the consequences of such extra-constitutional practices and the dimensions of loss to political system of State. The doctrinal method of research was adopted to conduct the study.

The European Court of Human Rights—Can there be too much Success? A Comment

AbstractLike almost no other international human rights protection system, the system of the European Convention on Human Rights is institutionally consolidated. The present contribution briefly traces the genesis and development of the European Court of Human Rights and then turns to the examination of three challenges the Court is currently faced with. In the section on the lack of implementation of judgments, the approach of the German Federal Constitutional Court to the Strasbourg case law, which contrasts principled openness towards European human rights law with emphasizing constitutional identity, is analysed. Moreover, the contribution examines how this approach has been taken up by actors in the United Kingdom and Russia. The problem of the insufficient qualification of some candidates proposed by States is addressed in the section on the election of judges. A solution might be to formally integrate the members of the Advisory Panel into the official hearing of the candidates. The section on dynamic interpretation looks at the nexus between the Court’s interpretation of the Convention and the States’ acceptance of its jurisprudence. By transferring the interpretation of the Convention to an independent international authority, States relinquish part of their power. They will only accept this transfer of power permanently if the judicial interpretation by the Strasbourg Court remains consistent, comprehensible and plausible. The Court should therefore not act as a human rights’ ‘trendsetter’ or a ‘judicial activist’. Overall, three principles are decisive for an effective international human rights protection that meets with both the general and long-term acceptance on the part of the Contracting States and the undeniable needs of individuals to have their human rights and fundamental freedoms protected against unlawful State interference. These principles are the judicial self-restraint of the Court, the subsidiarity principle and a margin of appreciation left to the Contracting States.

Public Control: The Evolution of Views in the Context of Russian Constitutionalism and Significance for the Modern State

The article presents a constitutional and legal understanding of scientific views, as well as the approach of the federal legislator to the definition of the content of the concept of public control and its essential ideological basis, including the goals, objectives and principles of the implementation of this type of control in the Russian Federation. The correlation between the concepts of civil control and public control is considered. The importance of public control in the context of the constitutional ideals of a democratic legal social state as the foundations of the constitutional order of the Russian Federation is shown. The author outlines some areas of possible future improvement of the legal regulation of the goals of public control and the principles underlying the organization and implementation of this type of control in Russia, including 1) fixing in the law the principle of systemic unity of public control, state control (supervision) and municipal control; 2) inclusion among the principles of public control of the principle of personal responsible attitude to participation in such control; 3) consolidation among the principles of focusing on the further development of forms of public control. These and some other areas are proposed for further scientific discussion, and it is also stated as an urgent task of constitutional and legal science the need to stimulate further scientific research on public control in its systemic unity with state control (supervision), municipal control in the context of modern Russian constitutionalism.

THE ANTI-OLIGARCHY POPULAR CONSTITUTION

THE ANTI-OLIGARCHY POPULAR CONSTITUTION

Constitutional identity, expressivism, and constitutional change through judicial interpretation: The Indonesian LGBT case as a case study

Abstract Constitutional change can be produced through judicial interpretation when a particular dictum becomes informally entrenched and creates a new constitutional meaning without the need for a formal amendment. However, scholarship has not yet scrutinized the form of legal reasoning that may be used to push for such a change. The purpose of this article is to analyze the role of expressivism in justifying constitutional change through judicial interpretation. For this purpose, I have developed the expressivist framework into what I call “operationalized expressivism,” which refers to constitutional courts interpreting references to constitutional identity in the constitution such as to create a juridical effect. I then use the dissenting opinion in the Indonesian LGBT case as a case study of how operationalized expressivism can initiate a constitutional change. I have selected this particular opinion because of its potential to radically transform the constitutional landscape of Indonesia, as the dissenting judges have declared the Indonesian Constitution as a “Godly” Constitution that requires all laws to be consistent with religious values.

FEDERAL ALMAN ANAYASA MAHKEMESİ İÇTİHATLARI VE AB HUKUKU

Federal Alman Anayasa Mahkemesi içtihatlarıyla AB Hukukuna yön veren bir role sahiptir. Anayasa mahkemesinin AB Hukuku ve ulusal hukuk ilişkisinde 1974 tarihli “Solange I” kararı, 1986 tarihli “Solange II” kararı, 1993 tarihli “Maastricht” kararı, 2009 tarihli “Lizbon” kararı, 2010 tarihli “Honeywell” kararı ve 2014 tarihli “OMT” kararı bu bağlamda milat teşkil eden kararlar olarak AB hukuk literatüründe yer almaktadır. Makalede Federal Alman Anayasa Mahkemesi’nin AB birincil (primer) hukukunun ultra-vires denetimi ve anayasal kimlik denetimi bağlamındaki içtihatlarında ortaya çıkan gelişime ışık tutulması yanı sıra, diğer anayasa organları ile (Federal Meclis ve Federal Hükümet) entegrasyon rolü paylaşımı ve AB Divanı ile ilişki değerlendirilmektedir.

Belgia jako laboratorium federalizmu bipolarnego

Having moved away from unitarism, Belgium is described as a federal state of communities and regions. A large number of interpreters of the Belgian Constitution believe that federalism is an essential element of its constitutional identity. However, a more detailed analysis is needed to interpret the political system of this state. The breakdown of the unity of the political community at the national level as well as the doubt about the existence of a political nation are of crucial importance. A striking identity and growing separateness of the two linguistic groups, Flemish and Walloon, are decisive factors behind the originality of the political system of modern Belgium. In the article, I point out that the distinctive feature of the Belgian federalism involves the bipolarity and domination of the constitutional mechanism based on co-determination and co-operation of the two linguistic groups as the actual subjects of the power in the state. The predominance of this mechanism has significant systemic effects, including the renunciation of reforms to rationalize parliamentarism. The article also shows the importance of the Constitutional Court, hitherto underestimated, in maintaining the Belgian unity.

Internationalization of domestic law in the context of legal positions of the Russian Constitutional Court and the Russian Supreme Court

The article is aimed at identifying legal positions on the relationship between international and domestic Russian law in the decisions of Russian Constitutional Court and Russian Supreme Court.The purpose of the article is to confirm or disprove hypothesis that the practice of Russian Constitutional Court and Russian Supreme Court significantly changed the content of norm of Russian Constitution that recognizes generally recognized principles and norms of international law and international treaties as part of the Russian legal system.The methodological basis of the study was formed by both general scientific methods (dialectical, analysis and synthesis, induction and deduction) and special methods (synergistic, systemic-structural and formal-legal).The main results, scope of application. The main body of the article covers three interrelated issues. Firstly, the problems of interpretation of Pt. 4 of Art. 15 of the Russian Constitution. These problems are summarized to the ratio of the categories “generally recognized principles of international law” and “generally recognized norms of international law”, to possible contradictions between the current international treaty with the participation of Russia and the provisions of the Russian Constitution as well as to exceptions from the priority of international treaties over the domestic law of Russia. Five such exceptions are highlighted: the unconditional primacy of the Russian Constitution; domination of an international treaty only in the event of a conflict of its norms with the internal law of Russia; the presence in an international treaty of dispositive norms that are inferior to domestic law; taking into account the level of legal force when determining the correlation of an international treaty with the sources of national Russian law; implementation of an international treaty as self-executing or non-self-executing, when the priority of the latter directly depends on the adoption of an appropriate normative act of domestic law. Secondly, the system of legal positions of the Russian Constitutional Court on the relationship between international and domestic law and their target mission is considered. The legal positions on the issue under study are divided into two groups - on the interaction of international treaties with the domestic law of Russia and on the assessment of the prospects for the incorporation of the legal positions of the European Court of Human Rights into Russian legal system and the limits of its jurisdiction. The consolidating basis of all judicial legal positions is the unconditional priority of the Russian Constitution, the need to differentiate the normative content of an international treaty with the participation of the Russian Federation and acts of official interpretation by the authorized body of its norms, as well as the desire to preserve the constitutional identity of Russia. Thirdly, the subject of reflection was the limits of the internationalization of domestic law.Conclusions. There is an obstacle to the further internationalization of domestic law. It is the presence of spheres of public and state life that cannot and should not be included in the subject of international legal regulation and are subject exclusively to domestic legal impact. In addition, the framework of internationalization is due to the conflict with the state sovereignty of Russia and the desire to ensure the inviolability of the foundations of the constitutional order and national interests, and to ensure the country's constitutional identity.

Modern Constitutional Law of Russia: Continuity, Innovations and Constitutional Identity

Clarification of the trends in the formation and development of science and practice of constitutional law contributes to the concretization of its categorical and conceptual apparatus, which becomes especially relevant in connection with the amendments to the 1993 Constitution of Russia, approved by the all-Russian vote on July 1, 2020.In the course of the research, the following was discovered: the ongoing processes of novelization of constitutional science and practice are based on some successive aspects of doctrine and practice; continuity in constitutional law is one of the forms of preserving constitutional identity, the problem of which is acute to this day, given the growing process of globalization, which erases the differences between the Basic Laws of States.