Constitution-making, unconstitutional constitutional amendments and pro-authoritarian drifting of the constitutional order

2020 ◽  
pp. 167-167
Keyword(s):  
Constitutional Amendments ◽  
Constitutional Order ◽  
Constitution Making

Constituent Power and the Law

2020 ◽  
Author(s):  
Joel Colón-Ríos
Keyword(s):  
Latin American ◽  
Constitutional History ◽  
Constitutional Courts ◽  
Constituent Power ◽  
Constitutional Amendments ◽  
Constitutional Order ◽  
The People ◽  
The Right ◽  
Popular Initiative ◽  
Constitution Making

This book examines the place of the concept of constituent power in constitutional history, focusing on the legal and institutional implications that theorists, politicians, and judges have derived from it. It shows that constituent power, even though having historically been associated with extra-legality and violations of the constitutional order, has played important functions in the making of determinations of legal validity. Constitutional courts have employed it to justify their jurisdiction to invalidate constitutional amendments that alter the fundamental structure of the constitution and thus amount to a constitution-making exercise. Some governments have recurred to it to defend the legality of the transformation of the constitutional order through procedures not contemplated in the constitution’s amendment rule but considered participatory enough to be seen as equivalent to ‘the people in action’, and these attempts have sometimes been sanctioned by courts. Commentators and citizens have relied on the theory of constituent power to defend the idea that electors have the right to instruct representatives, and that the creation of new constitutions must take place through extra-legislative entities, such as primary assemblies open to all citizens. Several Latin American constitutions explicitly incorporate the theory of constituent power and allow citizens, acting through popular initiative, to trigger constitution-making episodes that may result in the replacement of the entire constitutional order. Building on these findings, the book ultimately develops a distinction between sovereignty and constituent power and argues that even a constitution-making body can be made legally subject to the conditions arising from a constituent referendum.

Reformist Constitution-making

2018 ◽  
Author(s):  
Nimer Sultany
Keyword(s):  
Arab Spring ◽  
Popular Sovereignty ◽  
New Order ◽  
Constitutional Change ◽  
Constitutional Amendments ◽  
Constitutional Order ◽  
Normative Power ◽  
Constitutional Level ◽  
Constitution Making

This chapter argues that post-Arab Spring constitution-making in Morocco, Jordan, Bahrain, Oman, and Algeria utilized constitutional change to avert the establishment of a new order. It argues that despite formal change at the constitutional level, constitutional amendments in these states maintained procedural and substantive continuities with pre-Arab Spring political and constitutional arrangements and were no less wanting. In particular, reformist constitution-making does not embody popular sovereignty and does not significantly improve the accountability of monarchs and rulers, nor provide effective institutional enforcement for rights. Finally, despite the dissimilar form of constitutional change, reformist constitution-making differs from revolutionary constitution-making in degree rather than kind. They both face legitimation challenges, are preoccupied with stability, have varying degrees of normative power, and, finally, both models of constitutional change maintained different degrees of continuity with the pre-existing constitutional order. Thus, neither revolutionary constitutional enactment nor reformist constitutional amendments secure the legitimacy of the regime.

scholarly journals On the Social Welfare State in Russia

2021 ◽  
Vol 1 ◽  
pp. 23-26
Author(s):  
Albina A. Stepanova ◽  
Keyword(s):  
Welfare State ◽  
Social Welfare ◽  
The State ◽  
Social Solidarity ◽  
Mutual Trust ◽  
Constitutional Amendments ◽  
Social State ◽  
Constitutional Order ◽  
The Social ◽  
State And Society

The article is devoted to the issues of defining Russia as a social state. The author reflects on the constitutional amendments, which are designed to ensure the implementation of the basis of the constitutional order of the social state. The article also indicates that some constitutional amendments are deeper in scope and content than previous rules. Thus, the principle of mutual trust between the state and society can act as a fundamental basis for other principles, in particular, for the principle of social solidarity.

Conclusion

2020 ◽  
pp. 295-306
Author(s):  
Joel Colón-Ríos
Keyword(s):  
Constituent Power ◽  
Constitutional Amendments ◽  
Legal Validity ◽  
Democratic Constitution ◽  
Constitution Making

This concluding chapter summarizes the main insights of the book, which present constituent power as an eminently juridical concept, one that can play a key role in determinations of legal validity and that places important demands on constitutional orders. It also identifies avenues for further research, particularly with respect to the imperative mandate, primary assemblies, the doctrine of unconstitutional constitutional amendments, the legality of informal but democratic constitution-making processes, and the enforceability of constituent mandates. The chapter concludes by arguing that to approach constituent power through legal lenses does not necessarily entail an attempt to domesticate an otherwise revolutionary concept. In the case of this book, such an approach seeks to realize part of the radical democratic potential of the concept: that, as in Rousseau, it is the sovereign people, and not its representatives, who must determine the content of the fundamental laws.

(Un)Constitutional Amendments and Cameroon Constitutions: Strange Bedfellows with the Rule of Law and Constitutionalism

2021 ◽  
Vol 29 (1) ◽  
pp. 95-116
Author(s):  
Justin Ngambu Wanki
Keyword(s):  
Rule Of Law ◽  
Constitutional Amendments ◽  
The Rule Of Law ◽  
Constitutional Order ◽  
The People

The article examines unconstitutional constitutional amendments in the constitutional order of Cameroon dating back from 1960 to 2008. The examination reveals that all the amendments engaged within this period fail to comply with the rule of law and constitutionalism, facilitated and abetted by the three branches of government in Cameroon. The article ends by emphasising that since power is held by government only as a trust for the benefit of the people, it entails that constitutional amendments should be undertaken only when they are in the interests of the people who are the ultimate beneficiaries of the trust.

Restoration Constitution-Making

ICL Journal ◽  
2015 ◽  
Vol 9 (4) ◽  
Author(s):  
William Partlett
Keyword(s):  
Domestic Politics ◽  
The Other ◽  
Popular Participation ◽  
Constitutional Order ◽  
Advantages And Disadvantages ◽  
International Recognition ◽  
Other Hand ◽  
The Creation ◽  
Constitution Making

AbstractThis Article will examine an important - but largely ignored - approach to constitution- making: The use of restored constitutional orders as the basis for the creation of a new constitutional order. Looking at this ‘restoration constitution-making’ in post-communist constitutional transition, it will describe how restoration held both advantages and disadvantages. On one hand, restoration improved the politics of constitution-making by helping to avoid the elite manipulation of extraordinary institutions during constitutional drafting. On the other hand, the restoration of decades-old constitutions also led to restored laws that privileged past generations and undermined broad popular participation. Finally, restoration was an important part of gaining international recognition for independence. This international component suggests that constitution-making is about more than just domestic politics. These findings are an important first step in understanding the potential of restoration to ensure a successful constitutional transition.

Entrenching the Right to Participate in Government in Kenya's Constitutional Order: Some Viable Lessons from the African Charter on Human and Peoples' Rights

2011 ◽  
Vol 55 (1) ◽  
pp. 30-58
Author(s):  
Morris Kiwinda Mbondenyi
Keyword(s):  
Human Rights ◽  
Chronic Condition ◽  
Fundamental Rights ◽  
Human Rights Violations ◽  
Constitutional Amendments ◽  
Constitutional Order ◽  
African Charter ◽  
Fundamental Rights And Freedoms ◽  
The Right

AbstractA practice of frequent constitutional amendments started shortly after Kenya attained her independence in 1963. Consequently, the country has witnessed a confusion of systems of governance, ranging from single-party autocracy to virtual multi-party democracy, which have served to endorse the chronic condition of human rights violations in the country. In the process of such experimentation, Kenyans have unabatedly been denied the enjoyment of many of their fundamental rights and freedoms, including the right to participate in their government. This article analyses Kenya's constitutional order with the intention of highlighting the extent to which the country's citizens have been denied the right to participate in their government. Drawing inspiration from the African Charter on Human and Peoples' Rights, the article recommends ways in which this right could be entrenched in the country's constitutional order.

scholarly journals Prohibiting Amendment: the Use of Absolute Rigidity in the Constitutions of the Countries of the World

2016 ◽  
Author(s):  
Dag Anckar
Keyword(s):  
Comparative Law ◽  
Fundamental Rights ◽  
Democratic Politics ◽  
African Countries ◽  
Constitutional Amendments ◽  
The World ◽  
Almost All ◽  
British Colonies ◽  
Constitution Making

Constitutional amendments are as a rule enacted by special procedures that are more stringent than the procedure required of ordinary legislation. Some constitutions even make use of entrenched clauses which restrict in full the use of amendment; such constitutions, then, introduce what is called in this study "absoluty rigidity" (AR). Mapping the use of AR in the constitutions of countries of the world, this study shows that about one third of the countries have introduced for defined issues and principles a ban on amendment, differences between regions of the world being fairly small and the overall pattern therefore being global rather than territorial. However, more than countries in other regions, African countries are frequent AR-users. In regards to the question why some states resort to AR whereas others do not, findings are that democracies are not as frequent AR-users as are non-democracies; furthermore, diffusion stands out as an important explanatory factor, as evident from an inserted case study of former British colonies which indicates that a distaste of Britain for AR has indeed been transformed to the colonies, almost all of which have avoided the method. Concerning matters that enjoy AR-protection, territorial integraty, fundamental rights and freedmons, and republican and democratic forms of government are among the most frequent. A fair amount of the AR-entrenchements are in an empty-words category, as they are violated, even flagrantly, by the very states that have installed them.Key-words: Comparative law, constitution-making, constitutional rigidity, democratic politics.

Conditions for a Constitution

2017 ◽  
Author(s):  
András Sajó ◽  
Renáta Uitz
Keyword(s):  
Social Conditions ◽  
Political Community ◽  
The Political ◽  
Constitutional Order ◽  
Limited Government ◽  
The People ◽  
Constitution Making

This chapter places the idea of the constitution and limited government within political and social conditions where the constitution is meant to endure. The more diverse the people, the trickier it is to govern them under one charter of government which works for all. The chapter starts from the privileged moment of constitution-making and explores the manner in which constitutions engage with the identity (or, more precisely, the identities) of the political community they stand for. The chapter discusses the uneasy relationship between constitutionalism and diversity as pre-conditions as well as challenges to the constitutional order. It examines the precursors of equality (toleration and tolerance), and situates the concept of citizenship in a context rife with opposing forces.

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