venerdì 14 agosto 2015

Conventions of Unamendability: Unamendable Constitutional Law in Politically Enforced Constitutions


Gert Jan Geertjes 


Leiden Law School, Department of Constitutional and Administrative Law

Jerfi Uzman 


Leiden University - Leiden Law School

June 17, 2015

Abstract:      
Legal scholarship on unamendable constitutional provisions regularly tends to focus on, what one might call ‘judicially enforced constitutions’. These are characterized by strong-form judicial review on the basis of a written constitution. Political constitutions, such as the United Kingdom and The Netherlands, are - on the other hand – to a large extent enforced by the political branches of government. The constitutional unamendability featuring in comparative scholarship usually concerns explicit (unamendability based on so-called ‘eternity clauses’) or implicit forms (unamendability inherent in the so-called ‘inner logic of the constitution’). These usually take place in (quasi-) constitutional court litigation. The classic example concerns a constitutional court directly invalidating acts of the (constitutional) legislature. At first sight, political constitutions do not fit well with existing perceptions of constitutional unamendability. Consequently, legal systems lacking judicial review of parliamentary legislation would arguably fall well outside the categories of either explicit or implicit constitutional unamendability.

We argue however, that political constitutions nonetheless contain mechanisms of unamendability. These mechanisms operate in the form of judicial or executive disobedience. As an example might serve the current debate on the future of the European Convention of Human Rights in the UK. Political calls for abandoning the judicial enforcement of European human rights law, have led British courts to respond by developing common law constitutional rights largely inspired by the ECHR. As a result, the judicial branch may continue to uphold fundamental rights, even in the unlikely event that Parliament would abolish such rights altogether. Similar examples may be found in Dutch case law.

The doctrine of unconstitutional constitutional amendments thus becomes relevant to a broader range of constitutional systems, such as the UK and The Netherlands. However, the concept of unamendability in political constitutions requires a more subtle approach. The unamendability of this type of constitutions does not emerge from constitutional provisions, whether explicit or not, but from principles embedded in constitutional culture. The nature of unamendability in these legal systems rather takes the form of conventions. The question whether parts of the constitution should be regarded as unamendable thus cannot be solely couched in the all-or-nothing terminology of legal rules. Instead, we argue that conventions of unamendability, due to their principle-based character, may be subject to changing circumstances and exceptions. Using existing literature on conventions as a model, we offer a comparative account of constitutional unamendability in political constitutions (i.e. legal systems lacking strong-form judicial review of legislative action).
Number of Pages in PDF File: 20

Keywords: Politically enforced constitutions, unconstitutional constitutional amendment, constitutional conventions, constitutional law

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