Informal Constitutional Change Research Articles

The Cypriot Doctrine of Necessity and the Amendment of the Cypriot Constitution: The Revision of the Unamendable Amendment Rules of the Cypriot Constitution Through a Juridical Coup D’ État

Abstract The constitutional design and the complete inability of the two ethnic communities who live in Cyprus (Greeks and Turks) to share the power according to the constitutional rules concluded soon after the independence to a constitutional crisis and consequently to the collapse of the system of governance that the Constitution provided, since the Turk-Cypriots withdraw from all their posts in key state institutions. The Supreme Court, in order to confront the issue that the part of the Constitution which set the system of governance became inoperative, implemented the ‘Doctrine of Necessity’, according to which the constitutional provisions that prescribe the bi-communal composition of all key institutions are suspended until the crisis comes to an end. The implementation of the Doctrine of Necessity did not leave intact the amendment formula of the Cypriot Constitution, which demands two separate majorities by 2/3rds of each community MPs for the conclusion of the process. However, such implementation of a judge-made standard to the amendment process raises crucial issues regarding the possibility of making clear-cut distinctions between constituent and constituted power, formal and informal constitutional change and about the legitimation of judges to revise through interpretation the amendment rules that the Constitution prescribes.

The Indonesian Constitutional Court and Informal Constitutional Change

The Indonesian Constitutional Court and Informal Constitutional Change

Para-constitutional engineering and federalism: Informal constitutional change through intergovernmental agreements

Abstract This article explores the phenomenon of informal constitutional change with a particular focus on the role played by intergovernmental agreements (IGAs) concluded between members of a federation. It has two objectives. The first is to add IGAs to the catalogue of methods through which constitutions are altered without recourse to formal amendment procedures. Using Canada as a case study, we highlight a paradox: by rendering unconstitutional certain legislative initiatives meant to circumvent formal rules of constitutional amendment, courts are actually inviting political actors, notably the executive branches, to resort to even more fluid and informal methods of altering the Constitution. Second, we bring the concept of “para-constitutionality” into the broader literature on informal constitutional change. Para-constitutionality captures two distinct dimensions of informal constitutional change which are often conflated. “Para” in the Greek sense signifies “circumvention.” The focus here is on effectivity, on the impact of mechanisms (such as IGAs) on the overall constitutional order. By contrast, “para” in the Latin sense means “against.” It is concerned with constitutional (in)validity. We seek to underscore that even when strategies are not found to be unconstitutional, they may nevertheless have a transformative impact on the overall federal architecture. In conclusion, we suggest that an implicit commitment to intergovernmental transactions and compromise, both inherent to federalism, may explain judicial benevolence in the face of negotiated para-constitutional engineering mechanisms, in contrast to unilateral legislative attempts at informal constitutional change.

Constitutional priorities as an example of substantive amendment of the Constitution

The aim of this article is to present the phenomenon of constitutional priorities as an example of so-called informal constitutional change. Constitutional priorities are a form of informal (substantive) constitutional amendment. Constitutional priorities are construed as a process of determining or giving priority to certain constitutional rules (constitutional provisions) and assigning lesser importance to others. Constitutional priorities are not permanent, they are a response to emerging social and economic, as well as political issues (situational context). They follow the changing reality and have an impact on the content and understanding of the provisions of the Constitution. The “substitution” of constitutional priorities may proceed in a crawling manner, i.e. through transformation of the state (e.g. environmental protection and sustainable development) or in an immediate manner as a response to a serious threat to the state and its citizens.

Shaping Presidential Powers in Hungary: Convention, Tradition and Informal Constitutional Amendments

Abstract There was no tradition of a republican president in Hungary before the fall of communism, and the transitory constitution of 1989 was unclear about the exact role the President should play in the constitutional system of Hungary. Some provisions even resembled those of presidential or semi-presidential systems; some ambiguities were clarified during the first two decades after the transition. Conventions, however, were established to some extent and sometimes very quickly. This period gave rise to guidelines as to how the powers of the President should be exercised. Some other powers were concretized and interpreted foremost by the Constitutional Court. These conventions and judicial interpretations formed the character of the Presidency to the extent of informal constitutional change. Some of these elements have even been incorporated into and formalized by the new Fundamental Law of Hungary. The present contribution will point out how the originally broad competencies of the President have been narrowed in the practice, and what role the Constitutional Court and political actors played in this process.

The “unwritten” Constitution: reflections on the Italian experience

The aim of the paper is to look at Italy’s invisible Constitution to identify the drivers of informal transformations and create a snapshot of the Italian case in order to make a comparative contribution to the debate. I argue that, in addition to the traditional forces of informal constitutional change – namely constitutional conventions, the role of the judiciary in interpreting the constitution and the role of relevant institutional actors – the Italian case must be seen in the light of the specific constitutional history of Italy, especially two fundamental “moments” of this history: the specific political context in which the Constitution was drafted in 1947 and Italy’s participation in the EU integration process. Only by looking at informal constitutional change in the broader context of these historical and political evolutions can we understand the key features of the “Italy’s unwritten Constitution”.

Преобразующие Конституцию Российской Федерации неформальные способы её изменения: между действительностью и конституционностью

The Constitution of the Russian Federation has been changed according to formalities and the rules established by it, although there are numerous examples of constitutional changes having been made outside of formal procedures. In the theory and practice of constitutional law, an approach has been developed according to which the constitution can be changed without formally changing its text — by changing its meaning. Such changes are called constitutional transformation and are carried out by informal methods of changing the constitution. They differ significantly from the formal methods of constitutional reform, since they are carried out not by the sovereign source of power but by the constituted power — by the legislative, executive, and judicial authorities. The article examines the main informal methods of changing the constitution: law, interpretation, convention. Constitutional transformation by informal methods of constitutional change is not provided for by the constitution, therefore it is unconstitutional. However, it becomes valid thanks to implementation by institutions established by the constitution, within the framework of constitutionally provided procedures and recognized as methods of constitutional change by other subjects of constitutional relations. If the subjects of constitutional relations are not in agreement with a constitutional transformation, they can overcome it through constitutional reform or (depending on the method) through an appeal to the constitutional court by which, if successful, an informal constitutional change becomes unconstitutional and invalid. Turning to informal methods, the government incurs costs in terms of the legality and legitimacy of the constitutional change, but at the same time it gains in terms of efficiency, time saving and the result obtained. The emergence of a “living”, “parallel” constitution, the lag of the formal constitution behind real life, the inadequacy of the constitutional text are the price paid for resorting to informal methods of constitutional change. It is important that resort to informal means does not become the norm. Constitutional transformation should be supplementary in nature, and appeal to it should be the last resort.

Social Movements and Constitutionalism in Japan, South Korea, and Taiwan

AbstractThis article considers whether the academic inquiry of comparative constitutionalism in Japan, South Korea, and Taiwan may be further developed by a full consideration of the relevance of social movements. Integrating social movement theories into comparative constitutional law, this article argues that a more nuanced positive account of the creation and consolidation of constitutionalism in these East Asian polities must be situated within the engagement of social movements in discursive venues for formal and informal constitutional change.

Globalizing Constitutional Moments? A Reflection on the Japanese Article 9 Debate

U.S. scholars have developed a rich toolkit for analyzing informal, as well as formal, processes of constitutional change. A leading example is Bruce Ackerman’s theory of “constitutional moments.” Comparative constitutional scholars, in contrast, have given relatively little attention to the legitimacy of informal modes of constitutional change. This Article contributes to filling this gap in our understanding of informal constitutional change outside the United States, by analyzing recent attempts by Shinzo Abe’s Liberal Democratic Party (LDP) government informally to amend or “reinterpret” Japan’s pacifist Constitution. Attention to the Japanese experience in this context reveals superficial indications of an actual constitutional moment, but also a lack of true democratic support for such change. This, the Article suggests, further helps reveal an important, though largely unstated, precondition for the application of Ackerman’s theory—that there must be meaningful competition between political parties, in the legislature and at national elections, before informal constitutional change can legitimately occur.

Informal Constitutional Change. The Case of Poland

Informal Constitutional Change. The Case of Poland

Formal and Informal Constitutional Change in the Netherlands

This paper starts by evaluating the relevance of the formal constitutional revision mechanism of the Constitution of the Netherlands. It argues that, although the Dutch constitution has been revised many times, the importance of its article 137 formal revision procedure for Dutch constitutional development should be put into perspective. Secondly, it explores processes of informal constitutional change. It sheds light on such processes by taking different perspectives. It argues that constitutional change outside the formal constitutional revision procedure can best be understood by taking a ‘historical institutionalism’ view. In conclusion, the paper suggests that, in the Dutch context, informal process of constitutional change have been much more important than formal constitutional revision and that, therefore, the theme of informal constitutional change should be the central concern of anyone who seeks to understand Dutch constitutional development.

Globalizing Constitutional Moments? A Reflection on the Japanese Article 9 Debate

US scholars have developed a rich toolkit for analyzing informal, as well as formal, processes of constitutional change. A leading example is Bruce Ackerman’s theory of “constitutional moments”. Comparative constitutional scholars, in contrast, have given relatively little attention to the legitimacy of informal modes of constitutional change. This article contributes to filling this gap in our understanding of informal constitutional change outside the US, by analyzing recent attempts by Shinzo Abe’s LDP government informally to amend or “reinterpret” Japan’s pacifist Constitution. Attention to the Japanese experience in this context reveals superficial indications of an actual constitutional moment, but also a lack of true democratic support for such change. This, the article suggests, further helps reveal an important, though largely unstated, precondition for the application of Ackerman’s theory – i.e. that there must be meaningful competition between political parties, in the legislature and at national elections, before informal constitutional change can legitimately occur.

Como normas constitucionais não escritas mudam Constituições escritas

Written constitutions are susceptible to informal changes that do not manifest themselves in alterations to the text, for instance as a result of judicial interpretation, legislative enactment or executive action. This phenomenon is well developed in the scholarly literature on constitutional change and informal constitutional amendment. But what remains understudied and undertheorized in Canada and the United States is how written constitutions change informally as a result of the development of an unwritten constitutional norm, otherwise known as a constitutional convention. In this Article, I hypothesize with reference to the Canadian and United States Constitutions that there exist two major categories of informal constitutional change by constitutional convention: incorporation and repudiation. I suggest also that incorporation and repudiation may each occur in two ways: incorporation may occur by filling an existing void in the constitutional text or by refining one of its existing provisions, and repudiation may result from creating a void in the constitutional text or from substituting one of its existing provisions. I then evaluate whether these four forms informal constitutional change by constitutional convention entail costs to the rule of law where constitutional meaning is rooted in the present public meaning of the constitutional text. My larger purpose in this Article is to invite a dialogue with comparative public law scholars on how unwritten constitutional norms change written constitutions so that we may ultimately better understand the forms and implications of unwritten constitutional change.

UNDERSTANDING INFORMAL CONSTITUTIONAL CHANGE

Amid much recent American work on the problem of informal constitutional change, this article stakes out a distinctive position. I argue that theories of constitutional change in the US must address the question of the relationship between the “small c” and “big C” Constitution and treat seriously the possibility of conflict between them. I stress the unavoidable role the text of the Constitution and structural doctrines of federalism and separation of powers play in this relationship and thus in constitutional change, both formal and informal. I therefore counsel against theories that rely solely on a practice-based approach or analogies between “small c” constitutional developments and British or Commonwealth traditions of the “unwritten” constitution and constitutional “conventions.” The alternative I advocate is to approach constitutional change from a historicist perspective that focuses attention on state building and the creation of new institutional capacities. This approach will allow us to make progress by highlighting that there can be multiple constitutional orders in a given historical era, thus accounting for the conflictual nature of contemporary constitutional development in the US.

Understanding Informal Constitutional Change

Amid much recent American work on the problem of informal constitutional change, this article stakes out a distinctive position. I argue that theories of constitutional change must address more directly the question of the relationship between the "small c" and "big C" Constitution and treat seriously the possibility of conflict between them. I stress the role the text of the Constitution and structural doctrines of federalism and separation of powers play in this relationship and thus in constitutional change, both formal and informal. I therefore counsel against theories that rely solely on a practice-based approach or analogies between "small c" constitutional developments and British or Commonwealth traditions of the "unwritten" constitution and constitutional "conventions". In particular, I critique theories developed by Karl Llewellyn, Ernest Young, Adrian Vermeule, and David Strauss. The alternative I advocate is to approach constitutional change from a historicist perspective that uses work from American political development scholarship to focus attention on how state building and the creation of new institutional capacities are linked to constitutional change. This approach will allow us to make progress by highlighting that there can be multiple constitutional orders in a given historical era, thus accounting for the conflictual nature of contemporary constitutional development.

Informal Constitutional Changes in Romania

Constitutional change has been one of the most interesting debates in the recent constitutional law scholarship. A distinction has been drawn between formal and informal constitutional changes, by using as a criterion the compliance with the requirements of the constitutional text regarding constitutional change. Usually, informal constitutional change is determined by various factors, among which the lack of clarity or the extreme rigidity of the Constitution. Constitutional Courts are among the authorities who are frequently responsible of making informal constitutional changes. The present article comprises a brief introduction on the differences between formal and informal constitutional changes, as well as the analysis of the Romanian case regarding informal constitutional changes.

Constitutional Amendment by Stealth

Constitutional amendment ordinarily channels public deliberation through formal, transparent, and predictable procedures designed to express the informed aggregated choices of political, popular, and institutional actors. Yet the Government of Canada’s proposed senator selection reforms concealed a democratically problematic strategy to innovate an informal, obscure, and irregular method of constitutional change: constitutional amendment by stealth. There are three distinguishing features of constitutional amendment by stealth—distinctions that make stealth amendment stand apart from other types of informal constitutional change: the circumvention of formal amendment rules, the intentional creation of a convention, and the twinned consequences of both promoting and weakening democracy. Constitutional amendment by stealth occurs where political actors consciously establish a new democratic practice whose repetition is intended to compel their successors into compliance. Over time, this practice matures into an unwritten constitutional convention, and consequently becomes informally entrenched in the constitution, though without the democratic legitimacy we commonly associate with an amendment. In this article, I theorize constitutional amendment by stealth from legal, theoretical, and comparative perspectives, and consider its consequences for the rule of law.

Constituent Power and Constitutional Change in American Constitutionalism

In this article, which is an extension and revision of my previous work, I argue that three ideas are fundamental to understanding the theory of constitutional change and the role of or democratic power in constitutional change: (1) Political constitutions are self-enforcing documents; (2) How constitutional change occurs is influenced by the degree to which the constitution has been legalized; and (3) Change can be constitutional without being legal. That is, a significant amount of constitutional change occurs through the ordinary political process. I describe each idea briefly and then provide a more detailed discussion by situating the relationship between constituent power and constitutional change in the context of the early republic. I then discuss some of the difficult methodological issues raised by the study of non-legal or informal constitutional change. Finally, I use the example of presidential power, referencing impeachment and the post-9/11 debate, to illustrate how informal constitutional change can serve as a lens for understanding contemporary U.S. constitutionalism.