Eternity and Democratic Precommitment

2021 ◽  
pp. 17-50
Author(s):  
Silvia Suteu

This chapter examines eternity clauses as mechanisms of constitutional precommitment and as tools for defending democracy in the face of anti-democratic forces. It looks at two broad categories of eternity clauses: provisions protecting state fundamentals and provisions defending democratic pluralism. It also analyses understandings of unamendability as either merely descriptive or as preservative of a core of liberal constitutionalism by assessing the operation of eternity clauses in practice. This chapter discusses unamendable provisions as dealing in imponderables and enshrining values that need judicial specification. It shows how precommitment and militant promise are entirely dependent on other elements of the constitutional architecture, in particular constitutional review. The chapter explains how this results in court self-empowerment and unduly limiting the scope of permitted constitutional change in the name of democracy.

2014 ◽  
Vol 13 (4) ◽  
pp. 429-451 ◽  
Author(s):  
Charles Manga Fombad

Constitution-building is a delicate and intricate process which requires ample reflection and careful choices. African constitution-builders and politicians have since the beginning of the 1990s embarked on a process of constitutional reforms. A careful examination of the developments of the last two decades shows that the process has almost provoked never-ending contagion of making, unmaking and remaking of constitutions. This paper attempts to provide an over-view of the changes that have been taking place. Some of the issues relating to the durability of national constitutions and theoretical foundations for constitutional change are discussed. The paper also considers some of the possible implications of the endless processes of making, unmaking and remaking constitutions. The critical question it tries to grapple with is how this unending process of constitution-building in Africa can be controlled in a manner that will ensure peace, political stability and provide a legitimate foundation for entrenching a firm culture of constitutionalism. In advocating for an entrenched permanent constitutional review commission to check against frequent and arbitrary constitutional changes, the paper argues that this is the best way for constitutional legitimacy to be sustained throughout the life of a constitution.


2015 ◽  
Vol 16 (6) ◽  
pp. 1471-1490
Author(s):  
François-Xavier Millet ◽  
Nicoletta Perlo

A preliminary reference on the part of the Constitutional Council was, in several respects, not to be expected. It was debatable whether it would consider itself as a “court or tribunal” within the meaning of Article 267 of the Treaty on the Functioning of the European Union (TFEU) and, therefore, whether it would refer a case to the European Court of Justice (CJEU) at all. The French constitutional court could also have resorted to theacte clairdoctrine so as to escape from their obligation to ask for the interpretive guidance of the CJEU. However, the main reason why a reference was not awaited by legal actors lies in the limited jurisdiction of the Constitutional Council. Until the introduction in 2008 of the so-called QPC, that is,question prioritaire de constitutionnalité(the Priority Preliminary Reference mechanism on issues of constitutionality), theConseil constitutionnelhad a very limited jurisdiction compared to its European counterparts. Its main mission was to assess the conformity of parliamentary bills and treaties with the Constitution and only with the Constitution. Its review could only take placeex ante, between the adoption and the promulgation of a text. By opening the way to anex postreview of statutes with regard to the rights and freedoms guaranteed by the Constitution, the QPC brought about a major change in the French adjudication system: statutes are no longer immune from constitutional challenge once they are in force. However, treaties and other international or European commitments are no parameters of constitutional review. TheConseil constitutionnelmade this clear in 1975 and never seriously changed track, despite minor qualifications to the rule. In their seminalIVGruling on the Voluntary Interruption of Pregnancy Act, they held that it was not up to them to review the compatibility of bills with treaties, in spite of Article 55 of the Constitution. Consequently, the task of the constitutional judges does not go beyond the assessment of laws with regard to the Constitution. This is the main reason that explains why, on the face of it, theConseil constitutionnelwas unlikely to refer a case to the CJEU. Why would it seek the interpretation or ask for the review of a European text if this text is immaterial for it and if the yardstick of its examination is the Constitution and only the Constitution? Yet, it happened. For the first time, theConseilreferred a case to the CJEU on 4 April 2013. Although this is undoubtedly a major legal breakthrough, we will see in due course that this is probably more arévolution de palaisthan a true revolution in French constitutional law.


Legal Studies ◽  
2016 ◽  
Vol 36 (1) ◽  
pp. 75-92
Author(s):  
Ian Cram

How easy ought it to be to enact constitutional amendment? In the absence of constitutionally prescribed procedures, fundamental reforms in the UK can often appear hurried, under-consultative and controlled by transient political majorities. In the recent referendum on Scottish independence, the NO campaign's promise of additional powers to Holyrood in the face of a possible ‘Yes’ vote appears to fit this pattern (even if, for reasons of political sensitivity, it was not driven directly by members of the Coalition government). A recent sample of concluded constitutional reforms, including the Constitutional Reform Act 2005, the Constitutional Reform and Governance Act 2010 and the Fixed-term Parliaments Act 2011, have drawn criticism from within Westminster on the grounds of defective process. Specific options to improve pre-parliamentary and parliamentary stages of constitutional reform have been proposed with a view to attaining principled procedures of constitutional reform removed from executive control that signal attachment to process values such as wide and effective consultation, deliberation outside and inside Parliament, and informed scrutiny. The foregoing prescriptions for remedying defective processes may, however, be said in the ultimate analysis to retain a normative preference for a more formal, elite-managed vision of constitutional change that is premised upon a limited conception of the citizens' ‘informed consent’. In any case, in purely descriptive terms, top-down managed change does not capture the totality of patterns of past constitutional reform in the UK. In the nineteenth and early twentieth centuries, for example, radical grassroots campaigns for the extension of the franchise resulted ultimately in universal adult suffrage. More recently, the Scotland Act 1998 can be seen as the culmination of a civic society–led, deliberative engagement with ordinary voters over decades that offered an alternative vision of ‘bottom-up’ constitutional reform to that seen in more formal, elite-led processes of constitutional reform. The inclusive and participatory nature of the campaign for Scottish devolution marked out a radically different model of constitutional reform to that which has typified Westminster-style amendment and which is still largely directed by political elites. In such circumstances as prevail currently at Westminster, it is difficult to give much credence to claims that the outcomes of constitutional reform processes enjoy the ‘informed consent’ of the people.


This volume is designed to mark the outstanding legacy of Professor Wojciech Sadurski’s scholarship in the field of comparative constitutional law. It provides a rich palette of chapters that aim to rethink the state of the art in this field, in light of the latest challenges to the foundations of liberal constitutionalism. Edited by former doctoral students of Professor Sadurski, the volume transcends the celebration of his major academic contributions by linking his pioneering writings, inter alia on Central and Eastern Europe (CEE), to core dilemmas in the turbulent state of the rule of law in western democracies. It consolidates contributions by numerous current and former students, as well as colleagues and friends around the globe in admiration of his didactic style, tireless work, civil dedication, and priceless commentary influencing the work of generations of constitutional scholars. Besides drawing on Wojciech’s fields of interest, the book aims to provide a full overview of the crucial dilemmas in dealing with the current decline of liberal democracies and populist challenges to the rule of law throughout Europe—events that he predicted early on in his writings about the Jörg Haider affair in Austria and the introduction of Article 7 TEU by the Amsterdam Treaty. The major themes of the chapters are thus as follows: 1. Populism and democratic decline in CEE; 2. The EU role: Article 7 TEU vis-à-vis the rule of law in Hungary and Poland; 3. Constitutional review and militant democracy: between public reason and new forms of populism.


Author(s):  
Colin Clarke

The enactment of Jamaica’s independence in Kingston on 6 August 1962 did not sweep away the colonial structures that had been put in place for the previous three centuries. Constitutional change had been taking place since 1944, but unemployment and dependence on the informal sector of the economy, coupled to poor housing and slum formation, could not be put right in short order. This chapter focuses on employment/unemployment and housing issues in Kingston in the first decades after independence, and makes a direct comparison with conditions in the last years of colonialism. A major new policy introduced after sovereignty was structural adjustment, which began to be implemented in a systematic way in the 1980s, and has had a substantial—and negative—impact on the lower class. Academic opinion suggests that the Latin American and Caribbean city has been doubly undermined during the last half century: first, by massive population increase following 1950, as the balance of the population has shifted from predominantly rural to overwhelmingly urban; and, secondly, by structural adjustment, which, since the late 1970s, has undone or undermined many of the solutions to urbanization previously achieved by grassroots endeavour in the face of labour-intensive capitalism—for example, the provision of shelter through self-help housing of the squatter kind. In short, whatever benefits late twentieth-century globalization has brought to Latin American and the Caribbean, there have been massive losers among the urban poor (Clarke and Howard 1999). This chapter modifies many, but not all, of these generalizations in the case of Kingston. While its formerly protected economy has been turned inside out by structural adjustment, Jamaica’s economy, even prior to independence, was small, open, and therefore potentially vulnerable; and Kingston was already a classic example of an overcrowded metropolis with a weak industrial base. The introduction of structural adjustment in Jamaica has increased unemployment or withdrawal from the labourforce, and impacted on the housing situation among the lower class, without—in the case of Jamaica—increasing economic growth. However, in Kingston, once the immediate impact of structural adjustment was over, a static or slowly declining urban economy has gone hand in hand with a gradual reduction (so the data show) of the highest levels of unemployment and a substantial improvement in housing provision and quality, despite the fact that more than half the labourforce is in the informal sector.


ICL Journal ◽  
2013 ◽  
Vol 7 (2) ◽  
Author(s):  
Svetlana Tyulkina

AbstractThis article investigates recent developments in Spain’s anti-terrorism regime, in particular the 2002 Law on Political Parties which introduced a non-criminal procedure to outlaw political parties. The 2002 Law was adopted as a response to the continuing exist­ence of political violence associated with terrorist group ETA. It therefore constitutes part of the national counterterrorism regime. This article argues that the 2002 Law was a leg­islative novelty and that its immediate application to ban the political party Batasuna brought about substantial changes to the existing system of constitutional protection of political freedoms, as well as modifying the established standards of constitutional review of anti-terrorism legislation. Furthermore, the result of the November 2011 Spanish parlia­mentary elections has brought questions on the effectiveness of the 2002 Law and its pos­sible future application to the fore of political and legal discourse. The article concludes that the outcome of the 2002 Law on Political Parties is rather disappointing and suggests that there are lessons other democracies can learn both for their counterterrorism policies and treatment of political parties.


2019 ◽  
Vol 8 (1) ◽  
pp. 29-39 ◽  
Author(s):  
MARK TUSHNET

Abstract:An international consensus on the content of domestic constitutional law has structural ‘rights’-related components. The former requires roughly democratic systems for choosing representatives/executives. The consensus favours some forms of judicialised constitutional review, though the precise form is open to choice. The rights component includes a standard list of ‘core’ civil rights, including in this category equality along a number of dimensions – though not class or income. The rights-component is fundamentally neo-liberal. This is clearest in connection with ‘second generation’ social and economic rights, which – the consensus holds – can be recognised in a constitution but should not be vigorously enforceable (in systems where there is judicial enforcement of constitutional rights). The rights of free expression and political association must be specified in ways that allow political challenges to be mounted against efforts – including legislative programmes of political parties that control governments – to resist the neo-liberal policy agenda. Departures from this consensus are described as departures, not from ‘neo-liberal’ or even ‘liberal’ constitutionalism, but as departures from constitutionalism as such. We could ‘thin down’ the idea of constitutionalism quite a bit without abandoning constitutionalism’s core commitment to avoiding arbitrary government action.


2011 ◽  
Vol 12 (1, 2 & 3) ◽  
pp. 2002 ◽  
Author(s):  
Sujit Choudhry

The standard story in public policy and constitutional circles on the relationship between the Constitution and the Canadian Economic Union is a story of constitutional failure: that the Constitution has proven to be ineffective at furthering the integration of the Canadian economy.1 As a consequence, securing this goal requires either constitutional amendment or, in the face of the impossibility of large-scale constitutional change, the use of non-constitutional policy instruments such as the Agreement on Internal Trade, an intergovernmental agreement designed to remove barriers to interprovincial economic mobility.2 In this paper, I challenge this view. My argument is that constitutional litigation under the Charter’s3 mobility rights provisions can serve as an effective alternative to the various mechanisms (adjudication and negotiation) established under the AIT to further the integration of the Canadian economy. Moreover, I suggest how constitutional litigation can actually strengthen the AIT, rather than simply serve as an alternative to it.


Author(s):  
Jamie Terence Kelly

This chapter identifies a number of plausible institutional reforms that could help to secure the epistemic value of democratic decision making even in the face of framing. In order to counteract the effects of framing, three broad strategies suggest themselves. First, increasing the number of competing frames for political issues (e.g., by ensuring a diversity of political and media perspectives) holds out the possibility of making us more responsive to reasons than to frames. Second, mechanisms designed to isolate democratic outcomes from flawed democratic decision making (e.g., constitutional review) might allow us to catch mistakes before they undermine the epistemic value of democratic arrangements. Third, public education programs aimed at eliminating framing effects could provide us with a direct means of improving the decision making of democracies.


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