Yaniv Roznai

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.

The Theory and Practice of ‘Supra-Constitutional’ Limits on Constitutional Amendments

This article examines whether there are any limitations on constitutional amendment powers that are external to the constitutional system and above it — ‘supra-constitutional’ limits. It considers the theory and practice of the relationship between natural law, international law or other supranational law, and domestic constitutional law in a comparative prism. After considering the alleged supremacy of supranational law over constitutional amendments, the author explores the problem of the relationship between the different legal orders in the external/internal juridical spheres, and the important potential and actual role of national courts in ‘domesticating’ supranational law and enforcing its supremacy. It is claimed that despite the growing influence of supranational law, state practice demonstrates that constitutional law is still generally superior to international law, and even when the normative hierarchical superiority of supranational law is recognized within the domestic legal order, this supremacy derives not from supranational law as a separate legal order, but rather from the constitution itself. Therefore, it is claimed that existing practice regarding arguments of ‘supra-constitutional’ limitations are better described by explicit or implicit limitations within the constitution itself, through which supranational standards can be infused to serve as valid limitations on constitutional amendment powers.

Legisprudence Limitations on Constitutional Amendments? Reflections on The Czech Constitutional Court's Declaration of Unconstitutional Constitutional Act

Abstract Can a constitutional norm be unconstitutional? This idea seems, at first sight as a self-contradiction. Unconstitutionality is commonly referred to those ordinary laws, inferior to the constitution, which violate it. Constitutional norms, in contrast, carry an equal normative status as the constitution itself and other constitutional provisions. The question of unconstitutional constitutional norms recently arose in the Czech Republic. On 10 September 2009, the Czech Constitutional Court declared Constitutional Act no 195/2009 Coll, on Shortening the Fifth Term of Office of the Chamber of Deputies to be unconstitutional. The Czech Constitutional Court held that the constitutional act was an individual, specific decision and retroactive, thus violating the unamendability provision (Art 9(2)) in the Constitution, which prohibits amendments to the essential requirement for a democratic state governed by the rule of law. This article analyses the Czech Constitutional Court’s decision in a broader comparative and theoretical perspective and focuses, mainly, on four issues: first, the Czech Constitutional Court’s authority to substantively review constitutional norms; second, the appropriate standard of review when exercising judicial review of constitutional norms; third, the ‘individual, specific’ character of the constitutional act; and fourth, its alleged retroactive application. The article claims that while the Czech Constitutional Court was generally correct in claiming an authority to substantively review even constitutional norms, this was not the appropriate case in which to annul a constitutional act.

Law reform in Israel

ABSTRACT This article examines the way that law reform is – and has been – made in the Israeli legal system. Israel has a mixed legal system which reflects a mixture of Civil Law and Common Law traditions. This mixture is also manifested in the states approach to law reform, as there is no permanent commission responsible for law reform and, in fact, no definition of law reform. This article reviews the historical developments of the Israeli legal system, with the absorption of the Ottoman and British Mandatory Law into the Israeli legal system, followed by major efforts in the 1960–1970s, undertaken by the legislative department in the Ministry of Justice with the assistance of ‘ad hoc’ legislative commissions, to create a ‘new’ Israeli legislation – ‘codification style’ – especially in the field of civil law. It then examines the rise of the private legislative initiatives in the early 1990s, the role of the court in judicial law-making and the role of the Ministerial Committee for Legislation. It is claimed that law reform in Israel is all but ‘systematic’. However, the authors do not call for establishing a permanent law reform commission, but rather to develop a model of law reform that would include objectives, strategies, resources, participants and their appointment and responsibilities. Additionally, the high number of private bills should be reduced and the Ministerial Committee for Legislation, which is the central obstacle for non-governmental law initiatives, must act on a transparent basis. In other word, they suggest that, in Israel, law reform needs a form.

Necrocracy or Democracy? Assessing Objections to Constitutional Unamendability

Unamendability is a growing trend in global constitutionalism. Yet, unamendability, as a constitutional mechanism, raises various challenges and objections. Mainly, by perpetuating certain constitutional rules, values and institutions, unamendability exacerbates the ‘dead hand’ of the past, and by restricting all constitutional possibilities available to the people to revise their constitution, unamendability is seen as undemocratic and dangerous as it encourages extra-constitutional and revolutionary means in over to modify unamendable principles. Furthermore, the judicial enforcement of unamendability grants courts vast powers over other governmental branches, turning the judiciary into the final arbitrator of society’s values. This chapter identifies and analyses the main theoretical, practical and textual challenges to unamendability. It demonstrates that unamendability is a complex mechanism which ought to be applied with great care. Yet, it also argues that if the theory of unamendability is correctly construed as a mechanism which reserves a constitutional space for the decision-making of ‘the people’ in their capacity as holders of the primary constituent power (in contrast with the limited amendment power), this mitigates many of the challenges raised by unamendability.

‘We the People’, ‘Oui, the People’ and the Collective Body: Perceptions of Constituent Power

Constituent power is generally recognized as the power of ‘the people’ to establish a constitutional order. Regarded as external and prior to the constitutional order, it is often distinguished from constituted powers. The circularity of constituent power is that ‘the people’, the constitutional author, is itself constituted by the constitution. Thus, notwithstanding its immense importance, constituent power remains one of the most intangible concepts in constitutional theory. This Chapter presents and contrasts various theoretical conceptions of constituent power, mainly of its legal or illegal nature; of its holders; and of its direct or representational manifestation. It demonstrates how comparative constitutional design aims to bridge between a mythical conception of ‘the people’ and the real population by providing popular mechanisms for exercising constitutive functions. Due to its importance and complexities, it is argued that the concept of constituent power must not be abandoned but further studied and conceptualized.