Unamendable Provisions Research Articles

Unamendable Provisions in The 1945 Constitution To Limit The Power Of Constitutional Amendment in Indonesia

Unamendable Provisions in The 1945 Constitution To Limit The Power Of Constitutional Amendment in Indonesia

Theory of Constitutional Unamendability; The Legality of Sec.23(4) of the Zanzibar Constitution, 1984

Many constitutions across the world contains un-amendable provisions, in order, inter alia, to protect the basic characteristics of the constitutional principles seeming as to be at risk of repealed by the parliaments. From the same aspect, this article meant to examine un-amendable provisions stipulated in the Constitution of Zanzibar, 1984. In doing so, the article reviews the origins, formation and substance of un-amendable provisions. To some extent, un-amendable provisions drawn in the 1984 Constitution, executes certain functions and imitate the significant values of the constitutional principles. In spite of these limitations being used as a protector of genetic codes, but the constitutional drafters were keen enough to find a way not to diminish the power of the people to modify their way of life through un-amendable provisions.

UNAMENDABLE PROVISIONS OF THE CONSTITUTION AND THE TERRITORIAL INTEGRITY OF UKRAINE

Background: Unamendable constitutional provisions arose with the appearance of the first constitutions in the USA and Norway, but did not become widespread. The unamendability of a republican form of government, included in the Constitution of France in 1885, continued this tradition. Such provisions became more widespread after the Second World War. Countries that gained independence began to include a mention of territorial integrity in such provisions. Ukraine belongs to such countries (the Constitution of 1996). Since 2014, Ukraine has faced encroachment on its territorial integrity by an aggressor state − its eastern neighbor. Given these circumstances, the study of the nature and meaning of unamendable provisions of a constitution has particular relevance. Methods: The following methods were used in the work to research the main approaches to the unamendable provisions of the constitution. The system-structural method was useful when providing a structural characterisation of the concept of unamendable provisions, as well as its varieties, establishing a relationship with other concepts (multilevel constitutional design). The logical-legal method made it possible to discover the positions of scientists regarding an optimal list of unamendable provisions, the possible violation of such provisions in the situation of a constitutional revolution, and the positions of the Constitutional Court of Ukraine regarding the protection of territorial integrity in Ukraine. The comparative method was used to study the experience of foreign countries. Results and Conclusions: The paper analysed the legal consequences of violation of territorial integrity, concluding that military aggression, occupation and unacknowledged annexation of part of Ukrainian territory by Russia is not a reason to refuse territorial integrity as an unamendable provision of the Constitution of Ukraine. On the contrary, the protection of this provision should be strengthened.

Keberadaan Klausul Yang Tidak Dapat Diubah (Unamendable Provisions) Sebagai Identitas Konstitusi

Unamendable provisions are provisions set in order to limit the constitutional amendments. There are unamendable provisions that are implied or affirmed directly by the Constitution and there are those that may appear in the future should there be a dispute over the constitutional amendments. The concept of constitutional identity is always associated with unamendable provisions. The problems raised in this research are, first, how is the arrangement of unamendable provisions as constitutional identity in the 1945 Constitution? and second, what is the authority of the People's Consultative Assembly (MPR) in constitutional amendments to the Constitution? This is a juridical normative research, which the results of the research conclude that first, the existence of unamendable provisions as a constitutional identity must be expressly stated in the Constitution. Unamendable provisions are implicitly contained in Article 37 paragraph (5) of the 1945 Constitution and in the basic agreement made by the founding fathers of the nation before amending the Constitution. Second, the MPR's authority to amend the constitution is actually limited by provisions called unamendable provisions. This provision is contained in Article 37 paragraph (5) of the 1945 Constitution and is contained in the basic agreement which since the beginning of Indonesia's independence has been established by the nation's founders as a limiting provision in amending the constitution. Although, the MPR has a very large authority given by the 1945 Constitution in amending the constitution, but in carrying it out the MPR must be accompanied by good faith and political goodwill.

The Amendability Paradox: Could an Unamendable Amendment Be Amended?

Imagine an America in which there was enough support for a policy to pass a constitutional amendment to that end. Further, imagine that the drafters of this amendment wanted to ensure that no future generation could revoke the policy. Therefore, the drafters of this amendment included the following provision: “This amendment shall be unamendable. Any attempt to amend this amendment will, therefore, be unconstitutional.” If such an amendment were duly proposed and ratified based on Article V requirements, would the purportedly unamendable amendment truly be unamendable? This Article examines the evidence for and against the enforceability of such an amendment. Topics covered include issues of amendability generally, existing unamendable provisions in the U.S. Constitution, the near passage of the Corwin Amendment — which purported to be unamendable, relevant Supreme Court precedent, informal unamendability, pragmatism, the option for a second constitutional convention, whether unamendability violates democratic principles, the analogy of Congress being prohibited from binding future Congresses, and less extreme alternatives with similar effects. This Article then concludes by considering the related issues of how pragmatic such an amendment would be and the likelihood of a Supreme Court enforcing it.

Unamendability and Constitutional Identity in the Italian Constitutional Experience

The article explores the historical roots of the explicit unamendable clause(s) in the Italian Constitution. Following, it explores the scholarly debate over the interpretation of unamendable provisions. The article investigates theories of implicit unamendability of the Italian Constitution, and, in particular, it analyses the crucial role played by the Constitutional Court of Italy (ICC) and the principles that characterize Italian constitutional identity. Furthermore, the article explores the other side of constitutional identity, namely the theory of ‘counterlimits.’ The ICC specified that constitutional identity not only sets a limit to constitutional amendment powers but also sets ‘counterlimits’ to the entry of external norms (i.e., supranational and international law) in the domestic legal system. Finally, the article draws some conclusions and argues that the two sides of constitutional identity, although legally and logically independent, mutually reinforce each other and, ultimately, reinforce the counter-majoritarian nature of unamendability.

Eternity clauses in post-conflict and post-authoritarian constitution-making: Promise and limits

Abstract:The literature on entrenchment as a means to achieve constitutional endurance has grown in recent years, as has the scholarship on unamendable provisions as a mechanism intended to safeguard the constitutional project. However, little attention has been paid to the promise and limits of eternity clauses in transitional settings. Their appeal in this context is great. In an effort to safeguard hard-fought agreements, drafters often declare unamendable what they consider the fundamentals to the political deal: the number of presidential term limits, the commitment to human rights and to democracy, the form of the state (whether republican or monarchical), the territorial integrity of the state, the territorial division of power, secularism or the official religion. This article explores the distinctive role and problems posed by eternity clauses in transitional constitution-building, as guarantees of the pre-constitutional political settlement in such fragile periods. The article also compares unamendability to other techniques of constitution-making in uncertain times, such as sunset clauses, deferring hard choices and other forms of constitutional incrementalism.

La costruzione dell'identità turca attraverso le disposizioni costituzionali inemendabili

The making of Republican Turkey started from the definition of a homologating identity safeguarded through unamendable constitutional provisions. Therefore, the present essay analyses the role principles of secularism and of nationalism have for the definition of such identity as well as their influence on the rules for the recognition of citizenship. Some concluding remarks, finally, highlight that a redefinition of such a fundamental element, as debated during the attempts for a constitutional reform started since 2011, may represent a turning point for Turkey, both for its constitutional system and for its geo-strategic role in the international scenario

Unamendability and the Genetic Code of the Constitution

An increasing number of constitutions contain “unamendable provisions” in order, inter alia, to protect essential characteristics of the constitutional order or principles perceived as being at risk of repeal via the democratic process. The paper examines unamendable provisions. In order to do so, it studies the text of unamendable provisions which were and are stipulated in 735 former and current written national constitutions. It reviews the origins, structure and content of unamendable provisions, seeking any content-based or material links among them. It also analyzes the characteristics of unamendable provisions and identifies various features of unamendability such as preservation, transformation, aspiration, conflict-management and bricolage. Unamendable provisions fulfill certain functions and reflect the important symbolic value of certain constitutional principles or institutions. It is argued that these limitations, which tie the past, present and future of a polity, are utilized, in a way, to preserve a core of a nation’s constitutional identity thus comprising its “genetic code”.