Part Four Constitutional Change, 11 Constitutional Amendment and the Substitution of the Constitution Doctrine

2017 ◽  
Author(s):  
Espinosa Manuel José Cepeda ◽  
Landau David
Keyword(s):  
Constitutional Amendment ◽  
Constitutional Court ◽  
Constitutional Change ◽  
Constitutional Amendments ◽  
Flexible System ◽  
Certain Answers

The 1991 Constitution sets up a relatively flexible system of constitutional change, which can be activated through several different routes. The Constitution has thus been frequently amended since its enactment. The Colombian Constitutional Court has been aggressive in policing the tools of constitutional change. It has been meticulous in ensuring that amendments follow the proper congressional procedures, and in the case of amendments via referendum it has ensured that questions are sufficiently clear and do not bias voters toward certain answers. Most significantly, the Court had developed a substitution of the constitution doctrine, where it has struck down some constitutional amendments on the ground that they replaced core provisions of the existing constitution, rather than merely changing them. This doctrine was most famously used in a case striking down a constitutional amendment that would have allowed the popular president Alvaro Uribe to run for a third straight term.

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

2021 ◽  
Vol 46 (3-4) ◽  
pp. 307-320
Author(s):  
Attila Vincze
Keyword(s):  
Constitutional Court ◽  
Constitutional Change ◽  
Exact Role ◽  
Present Contribution ◽  
Constitutional Amendments ◽  
Political Actors ◽  
Fundamental Law ◽  
Constitutional System ◽  
Presidential Systems ◽  
Judicial Interpretations

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.

Term Limits and the Unconstitutional Constitutional Amendment Doctrine

2019 ◽  
pp. 53-74 ◽  
Author(s):  
David Landau ◽  
Yaniv Roznai ◽  
Rosalind Dixon
Keyword(s):  
Latin America ◽  
Costa Rica ◽  
Term Limits ◽  
Constitutional Amendment ◽  
Constitutional Court ◽  
Constitutional Change ◽  
Term Limit ◽  
Constitutional Decisions

This chapter examines the interaction between term limit provisions and the unconstitutional constitutional amendment doctrine in Latin America. It illustrates the varied approaches of courts concerning the validity of attempts to amend presidential term limits. In Colombia, the Constitutional Court intervened to prevent what it saw as an undue easing of term limits (after permitting one round of easing); in Venezuela, Ecuador, and Bolivia, courts generally allowed attempts to ease or eliminate term limit using less demanding rather than more demanding procedural routes; and in Costa Rica, Nicaragua, Honduras, and Bolivia, judiciaries deployed the unconstitutional constitutional amendment doctrine in order to eliminate rather than to protect term limits. After mapping the major constitutional decisions issued on this issue in Latin America in recent years, the authors argue that transnational anchoring holds some promise in clarifying the proper scope of control of constitutional change regarding term limits.

scholarly journals Constitutional amendments and revision of the Constitution of the Russian Federation: features of the 2020 procedure

2021 ◽  
Vol 15 (2) ◽  
pp. 232
Author(s):  
Sergey P. Kazankov
Keyword(s):  
Russian Federation ◽  
Additional Condition ◽  
Constitutional Amendment ◽  
Constitutional Court ◽  
Constitutional Amendments ◽  
The Russian Federation ◽  
The Law ◽  
The Moment ◽  
Critical Notes

The article discusses the issue of the procedure for changing the Constitution of the Russian Federation. Examples of norms of foreign constitutions are given, which constitutionalists recognize as rigid constitutions in the order of their amendment. The ways of changing the Constitution of the Russian Federation are considered: revision, adoption of amendments, amendment of Art. 65Identified problems such as the form of the amendment to the Constitution, the moment of entry into force of the amendment, the introduction by the Law of the Russian Federation on the amendment to the Constitution of the Russian Federation of 2020 a nationwide vote as an additional condition for the entry into force of the amendment, as well as additional powers of the Constitutional Court of the Russian Federation to verify compliance with Chapters 1, 2 and 9 of the Constitution of the Russian Federation of the provisions of the Law of the Russian Federation on the amendment to the Constitution of the Russian Federation that have not entered into force, as well as the procedure for the entry into force of Art. 1 of the Amendment Act. The critical notes are offered. In particular, the author comes to the conclusion that the approval of the constitutional amendment by the parliaments of the constituent entities of the Russian Federation is not a moment, but a condition for its entry into force, therefore, the law on the amendment cannot introduce additional conditions for the entry into force of constitutional amendments, since this leads to a violation requirements of Art. 136 of the Constitution, which cannot be amended by the federal parliament in the manner prescribed by chapter 9 of the Constitution.

Democratic Erosion, Populist Constitutionalism, and the Unconstitutional Constitutional Amendments Doctrine

2020 ◽  
Vol 14 (1) ◽  
pp. 19-48
Author(s):  
Yaniv Roznai ◽  
Tamar Hostovsky Brandes
Keyword(s):  
Judicial Review ◽  
Constitutional Amendment ◽  
Constitutional Theory ◽  
Constitutional Change ◽  
Constitutional Amendments ◽  
Ongoing Process ◽  
Gradual Process ◽  
The World ◽  
Formal Procedures ◽  
Constitutional Changes

AbstractThe world is experiencing a crisis of constitutional democracies. Populist leaders are abusing constitutional mechanisms, such as formal procedures of constitutional change, in order to erode the democratic order. The changes are, very often, gradual, incremental, and subtle. Each constitutional change, on its own, may not necessarily amount to a serious violation of essential democratic values. Yet, when examined in the context of an ongoing process, such constitutional changes may prove to be part of the incremental, gradual process of democratic erosion in which the whole is greater than the sum of its parts. This Article explores how courts can respond to such constitutional changes. We argue the Unconstitutional Constitutional Amendment Doctrine should be adapted to respond to existing constitutional practices that utilize incremental and subtle amendments to dismantle the democratic order. We suggest that an aggregated judicial review should be developed. We must also rethink the automatic immunity – the result of two hundred years of revolutionary constitutional theory – provided to complete constitutional replacement from constitutional restrictions and scrutiny. Finally, as opposed to the instinct to require judicial self-restraint with respect to constitutional changes that concern the judiciary itself, we suggest that this is perhaps the type of changes that require strictest scrutiny.

scholarly journals Living Constitution in Indonesia: The Study of Constitutional Changes Without A Formal Amendment

Lentera Hukum ◽  
2020 ◽  
Vol 7 (1) ◽  
pp. 69
Author(s):  
Muhammad Addi Fauzani ◽  
Nur Aqmarina Deladetama ◽  
Muhammad Basrun ◽  
Muhammad Khoirul Anam
Keyword(s):  
House Of Representatives ◽  
The State ◽  
Constitutional Amendment ◽  
Constitutional Court ◽  
Constitutional Change ◽  
Political Will ◽  
Constitutional Convention ◽  
State Institutions ◽  
The Government ◽  
Constitutional Changes

The discussion regarding the living constitution in Indonesia has been increasingly important. The importance of this discussion deals with to the extent it has developed, particularly after Indonesia's constitutional amendment from 1999 to 2002. The current study of constitutional change in Indonesia, as a result of the constitutional amendment during Reformation, adds an emphasis on its change without a formal amendment. Thus, this paper will discuss the urgency of enforcing the amended 1945 Constitution in the lens of the living constitution and how to uphold it through the living constitution. This study uses doctrinal research and, in examining the case, it uses the statutory and conceptual approaches. The result of the study shows that the urgency of upholding the constitution through the living constitution relies on the concept of the living constitution that can dynamize the 1945 Constitution. In response to difficulties to formally amend the 1945 Constitution that depends on political will and rigid juridical condition, there should be a shift in the method of interpretation of the constitution by the Constitutional Court judges, from originalism to the living constitution. The enforcement of the 1945 Constitution through the living constitution can apply the constitutional convention and the interpretation by constitutional judges. This study suggests that the Government and the House of Representatives and other relevant state institutions can use the living constitution, by taking into account the constitutional convention is a source in the organization of the state to patch up the weaknesses of the constitution. Keywords: Living Constitution, Constitutional Changes, Formal Amendment.

Justifications for Initiating a Constitutional Amendment to Establish an Australian Republic: An Empirical Study

2012 ◽  
Vol 40 (1) ◽  
pp. 89-110
Author(s):  
Glenn Patmore
Keyword(s):  
National Identity ◽  
Empirical Study ◽  
Indigenous People ◽  
Political Action ◽  
Constitutional Amendment ◽  
Constitutional Change ◽  
Constitutional Amendments ◽  
Public Figures

Under section 128 of the Australian Constitution federal parliamentarians have the power to initiate constitutional amendments. This paper examines the justifications of politicians and public figures for proposing a referendum to introduce an Australian republic. From interviews conducted between 2008 and 2011, three important justifications for proposing change emerged: promoting a new national identity; success in passing a referendum and in re-election; and timeliness. An examination of these justifications raised additional questions, including: what reasons did politicians and public figures think were significant? How did their justifications form and develop? What were the reasons that inspired political action? The reasons for initiation of a referendum for a republic, and recognition of indigenous people in the Australian Constitution are also compared. The paper adds to the literature on formal constitutional change, and also offers a critique of the field.

The Architecture of Constitutional Amendment

2019 ◽  
pp. 175-228
Author(s):  
Richard Albert
Keyword(s):  
Constitutional Amendment ◽  
Single Subject ◽  
Constitutional Change ◽  
Single Track ◽  
Constitutional Amendments ◽  
Deep Dive ◽  
Alternative Design ◽  
Expressive Function ◽  
Important Relationship ◽  
Better Than

Constitutional amendment rules were once very simple in their design. A constitution codified a one-size-fits-all procedure for amendments to any part of the constitution, and that was it. Today, amendment rules are considerably more complex in their design and in the possibilities they offer constitutional designers for structuring their rules of constitutional change. This chapter examines the architecture of constitutional amendment, specifically the options available to constitutional designers to build their own rules of change. This chapter also weighs the strengths and weaknesses of these options and offers some guidance on when one choice may be better than another. This chapter compares single-track and multi-track pathways in constitutional amendment, single-subject and omnibus amendment bills, and procedures for amendment and dismemberment. This chapter also explains why codified unamendability is problematic for democracy and suggests an alternative design that can achieve the expressive function of unamendability while not denying the fundamental right of amendment. This chapter moreover examines the important relationship between time and change, namely how constitutional designers can use and manipulate time in their design of amendment rules. Finally, this chapter explores judicial review of constitutional amendments, beginning first by explaining eight strategies a court can use to invalidate an amendment and then elaborating several alternatives to the judicial invalidation of constitutional amendments. What results is a deep dive into the design of amendment rules. This chapter considers constitutions from around the globe.

Constitutional Amendments

2019 ◽  
Author(s):  
Richard Albert
Keyword(s):  
Constitutional Amendment ◽  
Constitutional Change ◽  
Constitutional Amendments ◽  
Democratic Government ◽  
Legal Constraint ◽  
The World

Constitutional Amendments: Making, Breaking, and Changing Constitutions is both a roadmap for navigating the intellectual universe of constitutional amendment and a blueprint for building and improving the rules of constitutional change. Drawing from dozens of constitutions in every region of the world, this book blends theory with practice to answer two all-important questions: What is an amendment and how should constitutional designers structure the procedures of constitutional change? The first matters now more than ever. Reformers are exploiting the rules of constitutional amendment, testing the limits of legal constraint, undermining the norms of democratic government, and flouting the constitution as written to create entirely new constitutions that masquerade as ordinary amendments. The second question is central to the performance and endurance of constitutions. Constitutional designers today have virtually no resources to guide them in constructing the rules of amendment, and scholars do not have a clear portrait of the significance of amendment rules in the project of constitutionalism. Constitutional Amendments: Making, Breaking, and Changing Constitutions shows that no part of a constitution is more important than the procedures we use change it. Amendment rules open a window into the soul of a constitution, exposing its deepest vulnerabilities and revealing its greatest strengths. The codification of amendment rules often at the end of the text proves that last is not always least.

scholarly journals Non-Constitutional Measures as an Alternative to Constitutional Amendment: Post Meech Lake and Charlottetown

Federalism-E ◽  
1969 ◽  
Vol 9 (1) ◽  
pp. 17-32
Author(s):  
Jennifer Chisholm
Keyword(s):  
Constitutional Amendment ◽  
Constitutional Change ◽  
Canadian History ◽  
Constitutional Amendments ◽  
Significant Events ◽  
Charlottetown Accord ◽  
High Politics

The period spanning from the early 1980s to 1992 has been referred to as the era of constitutional federalism in Canada. One of the most significant events in Canadian history occurred on April 17, 1982, the patriation of the Canadian Constitution. Quebec did not sign the Constitution and for the following decade the country was dominated by the “high politics” of constitutional change. The Meech Lake Accord and the Charlottetown Accord respectively attempted to accommodate Quebec’s conditions for signing the document, however both failed. This paper describes the process and content of both Accords and the factors that led to their failure. It argues that Canada is better off due to the failure of these two proposed constitutional amendments. It also argues that subsequent non-constitutional measures introduced in the 1990s and 2000s have addressed many of the mega-constitutional concerns that these two accords attempted to tackle. The paper discusses some of the issues included in both Accords that have since been addressed through non-constitutional means, including: the recognition of Quebec as a distinct society; the federal government’s spending power; Aboriginal selfgovernment; a veto for Quebec on certain constitutional amendments; and Senate reform.[...]

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