Judicial Review Of Constitutional Amendments 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

Revisiting Judicial Review of Constitutional Amendments in Bangladesh: Article 7B, the Asaduzzaman Case, and the Fall of the Basic Structure Doctrine

AbstractIn 1989, the Supreme Court of Bangladesh, in the Anwar Hossain Chowdhury case, first embraced implicit unamendability or interpretative unamendability of the Constitution – that is, the basic structure doctrine. Since then, the basic structure or the basic feature doctrine has been recognised as the theoretical premise underpinning judicial review of constitutional amendments in Bangladesh. In 2011, the Parliament adopted Article 7B of the Constitution, which introduced explicit or codified unamendability of a substantial number of provisions of the Constitution. This article argues that with the adoption of Article 7B, the basic structure doctrine has lost its relevance as the most important normative tool for determining the validity of future constitutional amendments, and this was confirmed in the Asaduzzaman case, in which the parliamentary mechanism for the removal of Supreme Court judges was held unconstitutional on the basis of Article 7B of the Constitution. It is also argued that the reasoning provided in the majority opinion of the Asaduzzaman case is not entirely flawless.

Petrificando la rama judicial en Colombia: autointerés judicial y control de constitucionalidad inapropiado de reformas constitucionales a la justicia

Abstract This article analyzes the judicial review of constitutional amendments aimed at modifying the judiciary in Colombia. It holds that when the Supreme Court of Justice (under the previous Constitution) and the Constitutional Court (under the Constitution currently in force) have quashed acceptable amendments to the judiciary, they have probably exercised such a review in a self-interested way, that is, in a non-impartial manner. Building upon the notion of “inappropriate judicial review,” the article argues that this potential lack of impartiality deepens traditional objections associated with judicial review of amendments (like democratic, interpretive and petrification issues) and undermines courts’ credibility before public opinion, thus risking their independence. After diagnosing this constitutional pathology and showing it has spread to some other jurisdictions, this research suggests that judicial review of amendments should continue in place to neutralize abusive constitutional changes. Nevertheless, regarding reasonable amendments to the judicial branch, it proposes a set of institutional and behavioral alternatives that could help mitigate the difficulties that underly a judicial scrutiny of a constitutional amendment that impacts the judges in charge of such a scrutiny.

Beyond Invalidation: Unorthodox Forms of Judicial Review of Constitutional Amendments and Constitution-amending Case Law in Colombia

Judicial invalidation of constitutional amendments has garnered the attention of scholars in the last few years. Questions like whether and how a court should quash an amendment are at the forefront of contemporary comparative-constitutional-law and constitutional-theory inquiries. This excessive focus on annulment, however, has neglected some other nonconventional forms of judicial involvement regarding amendments. Taking Colombia as a case study, this article shows that the Constitutional Court has also had the power to initiate amendments, define their content, rewrite their text, and promulgate them. As these novel judicial interventions that go beyond invalidation resemble the prerogatives commonly vested on the amendment power, this research terms them ‘constitution-amending case law’, offers an in-depth exploration of them, and proposes a typology of such a jurisprudence. Lastly, the article ends with a cautionary note about the challenges this type of constitution-amending case law faces from the perspective of democracy and democratic backsliding.

“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.

Judicial review of constitutional amendments: a legitimate defence of democracy through a counter-majoritarian power

This paper aims at addressing a subject that according to the arguments exposed therein, conforms a subtle constitutional paradox: the conceptual tensions in the democratic principle that arise with the creation of an instrument that is as necessary as it is problematic such as the judicial review of constitutional reforms by a counter-majoritarian body (i.e., the constitutional court). In view of the impossibility to address in a uniform and universal manner the potential compatibility between this type of control and the democratic principle, we propose a gradual or blurred approach to the question, taking into consideration how each constitutional system defines the limits of constitutional amendments.

Judicial review of constitutional amendments: a legitimate defence of democracy through a counter-majoritarian power

This paper aims at addressing a subject that according to the arguments exposed therein, conforms a subtle constitutional paradox: the conceptual tensions in the democratic principle that arise with the creation of an instrument that is as necessary as it is problematic such as the judicial review of constitutional reforms by a counter-majoritarian body (i.e., the constitutional court). In view of the impossibility to address in a uniform and universal manner the potential compatibility between this type of control and the democratic principle, we propose a gradual or blurred approach to the question, taking into consideration how each constitutional system defines the limits of constitutional amendments.

Judicial review of constitutional amendments: foreign experience

Judicial review of constitutional amendments: foreign experience

Taming regressive constitutional amendments: The African Court as a continental (super) Constitutional Court

The African Court on Human and Peoples’ Rights has the required substantive basis to function, and has in fact shown the willingness to operate, as a constitutional court for Africa. The Court has invalidated not only laws but also a constitutional provision as incompatible with relevant continental and sub-regional standards. The article argues that this extensive power of the African Court has implications for the empowerment of domestic constitutional courts to review the substantive validity of constitutional amendments. In combination with other constitutional and popular mechanisms of control, such an empowerment would constitute an additional veto point to stymie self-serving efforts undermining fundamental constitutional principles, so common in the African context. The express judicial empowerment and regulation of the review of constitutional amendments would allow constitutional designers to define the scope of the power, identify the enforceable substantive limits, and establish procedural and decision rules cognizant of the higher level of political consensus underwriting amendments. Counterintuitively, therefore, the recognition of domestic judicial review of constitutional amendments would limit judicial venture into constitutional politics.

A View on the Future of Judicial Review of Constitutional Amendments in Turkey

A View on the Future of Judicial Review of Constitutional Amendments in Turkey

Judicial Review of Constitutional Amendments: Taiwan

Scholars frequently distinguish between “hard” and “soft” forms of judicial review: “hard” review gives courts the final say on constitutional questions, whereas “soft” review attempts to strike a balance between judicial and legislative supremacy by giving the legislature the ability to override or set aside what the courts have done. However, the binary hard/soft distinction does not convey the full spectrum of possibilities between the extremes of legislative and judicial supremacy. On the one hand, so-called “hard” review can in practice operate like soft review because, even in systems of nominally hard review, the government usually retains the ability to effectively override the courts via constitutional amendment. On the other hand, courts have increasingly turned to options that are harder than “hard” review. A small but growing number of courts—the Taiwanese Constitutional Court among them—have claimed the power to invalidate constitutional amendments as unconstitutional. Yet even judicial review of constitutional amendments does not exhaust the options at their disposal. Analysis of Taiwan’s experience with judicial review over the last thirty years holds a number of lessons about judicial power and constitutional politics. First, “soft” review, “hard” review, and even review of constitutional amendments are merely intermediate points on a spectrum of judicial power that ranges from no judicial review to the judicial initiation of constitutional amendments. Moreover, the spectrum itself is dynamic and prone to expansion. In the face of new challenges, courts find new ways of asserting themselves, and in so doing, they continually remake the frontiers of judicial power. Second, there is no point on this spectrum where a court—or any other institution—is guaranteed the last word. Whenever courts assert themselves, other institutions have the ability to respond, and vice versa. Different responses are available at different points on the spectrum, but a response always exists. It is a defining characteristic of politics that, for every move, there exists a countermove. Finality is as elusive in constitutional politics as in any other form of politics. Third, the celebration of “dialogic” judicial review—in which constitutional questions are resolved via interaction between courts and legislatures rather than by judicial fiat—is problematic because, in some sense, all judicial review is “dialogic”. The fact that courts are never guaranteed the last word means that every plausible institutional configuration can be characterized as “dialogic” in the sense of allowing or inviting some degree of interaction, or “dialogue,” between the courts and the legislature. Finally, a court’s position on the spectrum of judicial power is not necessarily fixed by the constitution and can instead be highly fluid. As the recent history of the Taiwanese Constitutional Court demonstrates, it is possible for a court to traverse the entirety of the spectrum in a relatively short period of time without any corresponding change in the constitution itself. Major shifts in judicial power can occur without formal constitutional change because judicial power is at least as much a function of the political and institutional context as of the constitutional text.

«Пусть они ещё больше ремней на тебя намотают»: конституционный контроль за поправками к конституции в сравнительной перспективе

«Пусть они ещё больше ремней на тебя намотают»: конституционный контроль за поправками к конституции в сравнительной перспективе

Judicial review of constitutional amendments in Colombia: a political and historical perspective, 1955–2016

ABSTRACTThe Colombian Constitutional Court is widely known for being one of the emblematic and activist Courts representing the New-constitutionalism of the Global South, and also for the judicial review of the constitutional amendments under the ‘constitutional replacement doctrine’ (substitution doctrine). The Court adopted the substitution doctrine since its decision C-551/2003, in a time that coincides with the global expansion of the judicial review of constitutional amendments. However, it is far less known that, in Colombia, the debate about the judicial review of the constitutional amendments commenced several decades before that global expansion. This article intends to reconstruct the judicial review path of the constitutional amendments, and to show the interdependence between the political context and the doctrines of both the Supreme Court (1955–1991) and the Constitutional Court (1992–2016). The article examines this interdependence to contribute to a better understanding of the role of the Legislature, the Executive and the Judiciary in the construction of legal doctrines, such as the supremacy of the Constitution, the principle of separation of powers, the intangibility of constitutional clauses or the power of constitutional reform in the complex political context of a South American country. In sum, this article seeks to present how the judicial review path of the constitutional amendments in Colombia began long before the ‘expansion’ of that phenomenon at a global level, to show the interdependence between Law and Politics on that path, and to highlight the different Supreme Court and the Constitutional Court judicial activism in this topic since 1955 to the present.

Unconstitutional Constitutional Amendments in Mexico: The Failure of the Guardians of the Constitution and its Implications for Constitutional Hyper-Reformism

In the field of comparative constitutional law scholars have agreed on the potential of constitutional courts to enforce democratic limitations to the political branches in new or fragile democracies. For instance, one of the ways in which constitutional courts have stopped or failed to stop tendencies to what has been called abusive constitutionalism is through the exercise of judicial review of constitutional amendments. Mexico's constitutional change reality appears as a good candidate to have a court enforcing democratic limitations to the excessive use of constitutional amendment—the constitution has gone through over 690 amendments. Yet, despite the perfect conditions (formal empowerment and power fragmentation) for becoming a strong constitutional tribunal able to exert its authority vis-a-vis the political branches, the Supreme Court has consistently refused to engage in judicial review of constitutional amendments. This paper examines how the Mexican Supreme Court has treated the claims against constitutional amendments in the last four decades and suggests how its doctrinal stance on this issue is related to the parallel phenomena of constitutional hyper-reformism.

The Hegemonic Preservation Thesis Revisited: The Example of Turkey

This paper offers a critical rereading of the history of judicial review of constitutional amendments in Turkey. We argue that, contrary to appearances, the claim to a power of amendment review on the part of the Turkish Constitutional Court does not fit Ran Hirschl’s model of hegemonic preservation, which aims to explain the genesis of strong constitutionalism and judicial review as the result of an anti-democratic elite consensus that tries to leverage the prestige of judicial institutions. Attempts to impose Hirschl’s model on the constitutional history of the Turkish Republic have been very popular in the jurisprudential literature on Turkey, but the model offers a misleading and incomplete diagnosis of what ails Turkish constitutionalism. It is not the supposed excessive strength of formal constitutionalism and judicial review in Turkey, but rather the normative weakness of the Turkish Constitution of 1982, that is responsible, at least in part, for Turkey’s repeated constitutional crises. We therefore suggest an alternative template for understanding Turkish constitutional history—the theory of sovereignty as the power to decide on the exception put forward by Carl Schmitt.

Unconstitutional Constitutional Amendments—The Migration and Success of a Constitutional Idea

Can a constitutional amendment be unconstitutional? Prima facie, this seems like a paradox. This vexing issue has attracted increased attention in recent years. Whereas the definition of the nature of constitutional amendment power is among the most abstract questions of constitutional theory, the question of limits on constitutional amendments is not purely of academic interest. It has practical application; the issue has already been adjudicated in numerous countries and is likely to arise, sooner or later, in other countries as well. This issue of limits is a fundamental one and much could be gained from comparative study. This Article aims to trace the migration of limited amendment power and of judicial review of constitutional amendments through different jurisdictions and to paint a broad pattern of “constitutional behavior.” It appears that the global trend is moving towards accepting the idea of limitations - explicit or implicit - on constitutional amendment power. Bearing in mind the difficulties of borrowing (or transplanting) constitutional ideas from different jurisdictions into other legal cultures, this Article claims that limitations upon the amendment power is just one example of the larger phenomenon of the migration of legal ideas. At times, the notion of limited amendment power migrated intact into other jurisdictions, but on other occasions it also absorbed local content, primarily to acknowledge prior events and past experiences. The fact that this concept traveled across continents and entered different legal systems shows that borrowing a constitutional idea can be successful, even within very dissimilar legal systems. This comparative investigation into the origins and the migration of the idea of limits to the amending power will highlight the uniqueness of each legal system and unravel the conundrum of unconstitutional constitutional amendments itself.

Old and Protected? On the "Supra-Constitutional" Clause in the Constitution of Norway

The world's second-oldest written constitution (1814) still existing presumably also contains the world's oldest substantive “supra-constitutional” or “eternity” clause. According to its text, the “spirit “ and “principles” of the Constitution cannot be amended.However, it is less than clear that the clause is meant to exclude not only “amendments” but also the adoption of a brand new constitution. Moreover, the meaning of the clause two centuries later cannot be determined without regard to subsequent changes to other parts of the Constitution. The examples discussed include the constitutional monarchy, affected not only by the radical shift in our perception of the role of a hereditary king but first and foremost by formal amendments. In this way, “principles” that may initially have been protected may no longer enjoy a similar status.Who has the last word as to the substantive limits to amendments? The widely held view in Norway is that the judiciary should stand back. While judicial review of legislation leaves the last word about what norms to apply in the future to the constitution-amending power, judicial review of constitutional amendments would leave the last word about the future meaning of the Constitution itself to judges. Another argument refers to our inherent right as human beings to resist oppression. This argument deserves attention even if it is not substantiated in the text of the Constitution.Are the “spirit” and “principles” of the Constitution of Norway well protected? If the clause is understood as a contribution to the smoothness of constitutional development over time and thereby to the relative success of the Norwegian Constitution, the assessment is likely to be rather positive.

Judicial Review of Constitutional Amendments in Turkey

Judicial Review of Constitutional Amendments in Turkey