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2018 | OriginalPaper | Buchkapitel

Unamendable Constitutional Provisions and the European Common Constitutional Heritage: A Comparison Among Three Waves of Constitutionalism

verfasst von : Valentina Rita Scotti

Erschienen in: An Unamendable Constitution?

Verlag: Springer International Publishing

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Abstract

When debating which constitutional values are shared among European countries, scholars increasingly refer to the European Common Constitutional Heritage, which is a common set of values defined through their constitutional evolution and thanks to the role played by supranational regional organizations, such as the Council of Europe (CoE) and the European Union (EU). This essay discusses the interplay between said common heritage and the unamendable provisions in constitutions approved in Italy and Germany after World War II and in Romania and Czech Republic after the fall of the Berlin Wall. Given that European values crossed continental borders thanks to regional forms of cooperation, this essay also analyzes the Constitutions of Morocco and Tunisia in order to understand whether the unamendable constitutional provisions of each country, introduced after the so-called Arab Spring, have been influenced by and are consistent with the European Common Constitutional Heritage.

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Vorheriges Kapitel Brazil in the Context of the Debate Over Unamendability in Latin America

On the possible objection to unamendability, see, in this book, the contribution of Yaniv Rosnai, ‘Necrocracy or Democracy? Assessing Objections to Formal Unamendability’.

On the U.S. debate, see Sunstein (2009), pp. 1–16.

See Klein and Sajò (2012), p. 437; Roznai (2013), p. 657.

In this essay, waves of constitutionalism are modeled after the waves of democratization proposed in Huntington (1991), pp. 35–48, basing on the assumption that the mere approval of a Charter is not enough to envisage a regime change and that it should be coupled with the protection, in the Constitution, of freedoms, liberties, and democratic values. According to this assumption, Huntington stated that the first wave occurred from 1828 to 1926, the second one from 1943 to 1962, and the third one from 1974 to 1990; therefore, the 2011 Northern African wave may be considered as a fourth wave. The same chronologic criterion has been used in this essay to define the waves of constitutionalism.

This idea remounted to Benjamin Constant’s speculations, according to which people’s sovereignty does not include the possibility of the dissolution of its fundamentals. On the need to protect the core values enshrined in constitutional texts, see Fusaro and Oliver (2011).

The origin of this notion of pouvoir constituant (constituent power) may be traced back to the Abbé Emmanuel Joseph Sieyés, who, speaking in front of the French National Assembly in 1789, stated that “une Constitution suppose avant tout un pouvoir constituant”. Being this power an expression of the will of the Nation, it is not bound by any limit deriving from positive law, instead of the constituted power. Sieyés (1789), p. 18.

Roznai (in this book). This distinction recalls the French doctrine one between pouvoir constituant institué and pouvoir constituant dérivé. See Burdeau et al. (1993), p. 356.

See Roznai (2014), p. 86. For a critical vision on the attitude of framers toward the introduction of unamendable clauses, and more generally on their approach to constitutional drafting, see S Michel, IN Cofone, ‘Credible Commitment or Paternalism? The Case of Unamendability’, in this book.

For a deeper reasoning on the role of constitutional culture, see Albert (2008), p. 15.

On the role Courts may play in providing a sort of unamendability even in countries where it is not constitutionally declared, see, in this book, GJ Geertjes, J Uzman, ‘Conventions of Unamendability. Unamendable Constitutional Law in Politically Enforced Constitutions’.

The idea of the existence of supra-constitutional laws originated in France and then spread all over Europe. For an in-depth analysis of the debate in France, see Arné (1993), p. 460. For non-French scholars who debated on the point, see Schmitt (2004), Schmitt (2008).

This definition has been introduced by the Supreme Court of India in the case Kesavananda Bharati v. State of Kerala, AIR 197 SC 1461 (24 April 1973). For further information, see Abraham (2000), p. 195, Andhyarujina (2012).

See Alicino and Gradoli (2013).

Albert (2013), p. 225.

See Murphy (1995), p. 167.

See Kelsen (1967).

This is the sense of modern constitutionalism according McIlwain (1940).

On the content and the relevance of this Constitution, see Mortati (1946).

See Rosenfeld and Sajo (2012).

The Court referred to the common constitutional tradition for the first time in its case law in case 4/73 J Nold KG v. EC Commission [1974] ECR 491, 507.

See C-11/70 Internationale Handelsgesellschaft mbH v. Einfurt und Vorratsstelle fur Getreide und Futtermittel [1979] ECR 1125.

Even though the rules on conditionality were actually defined at the 1993 Copenhagen Council, the relevance of the respect of such principles for being a EU member became evident since the accession negotiations of Spain, when the Birkelbach Report, issued in January 1962, preconized the link between democracy and accession.

The possibility that this identity may be linked to the evolution of specific religious tradition is still controversial. It suffices to remind the debate during the drafting of the European Constitution on the reference to the Judaic-Christian roots of Europe or the controversial decisions of the Court of Strasburg in cases concerning religious symbols (see, i.e., Lautsi and Others v. Italy App no. 30814/06 (ECtHR 18 March 2011).

On the EU ratification of ECHR, see Schütze (2012), pp. 410–418.

Proceedings of the Conference, The Constitutional Heritage of Europe, Montpellier, 22–23 November 1996 (Council of Europe Publishing 1997).

See Arai and Arai-Takahashi (2002).

For references in the legal doctrine, see, among many others, Slaughter et al. (1998).

See Rousseau (1997), p. 57.

The abolition of death penalty is mainly due to the strong engagement of the Council of Europe, which passed the Protocols no 6 (1983) and no 13 (2002), and to the case law of the Strasburg Court (see, i.e., Al-Saadoon and Mufdhi v. United Kingdom App no 61498/08 (ECtHR, 2 March 2010).

In their later formulation, all these principles and aims have been summarized in the Preamble of the EU Treaty.

See Articles 4 and 5 of the Treaty of Lisbon and its Protocol no 2 on subsidiarity.

See Morlino and Magen (2004), p. 5.

It has to be admitted that, for long time, these policies did not prove their effectiveness as EU considered Northern African countries governed by autocrats, such Ben Ali’s Tunisia or Mubarak’s Egypt, as liable partners, not to say of the controversial relations established with Libya during the Gaddafi’s regime.

For an overview on how the idea of unamendability of some provisions affirmed in Europe, see Roznai (2013), p. 657.

On this distinction, see S Holmes, CR Sunstein, ‘The Politics of Constitutional Revision in Eastern Europe’, in Levinson (1995).

See Venice Commission (2010).

Then, the Constitution came into force on January 1, 1948.

Mussolini was appointed as Prime Minister in 1922. The King decided to dismiss him after a sort of vote of non-confidence of the Fascist executive body (Gran Consiglio) on July 25, 1943, and appointed as Prime Minister General Pietro Badoglio. He established a new government in Southern Italy, while in the North the Italian Social Republic was established under the guide of Mussolini and the German support. During this period, the legitimacy of the Monarchy was challenged and the will to establish a Republic after the end of the war and the defeat of Nazi Fascism diffused.

See Cheli (2006), pp. 32–33.

Both Article 95 of the 1946 French Constitution and Article 89 of the 1958 one stated the unamendability of republicanism affirming that ‘The Republican form of government shall not be the object of any amendment’.

See Crisafulli (1958), p. 188.

See Lanchester (2002), pp. 81–84.

The Unification Treaty, signed by the Federal Republic, the Democratic Republic and the four WWII winning countries on August 31, 1990, legally defined the reunification.

Although Article 79 does not explicitly contain the noun “unamendable”, it concretely provides for the ineffectiveness of any amendment attempt. See Albert (2008).

See Fox and Nolte (1995), p. 19. The Authors recall that German framers decided to introduce unamendable clauses being aware that if they were present in the Weimar Constitution, Hitler would have had to violate them, making a sounding difference for German people, traditionally bound by legalistic sentiments.

Abortion I, 39 BVerfGE 1 (1975).

Klass, 30 BVerfGE 1 (1970).

For further elements on the compromise among the framers of this article, see Baldassarre (1989), p. 11.

Italian Constitutional Court, decision n. 11/1956.

Italian Constitutional Court, decision n. 188/1980.

Italian Constitutional Court, decision n. 98/1979.

For some examples of the Italian case law concerning the introduction of rights through the open interpretation of Article 2, see Guastini (2007), p. 333.

See Italian Constitutional Court, decision n. 146/1988.

The Bavarian Court’s declaration was issued in the decision 2 VR 65, April 4, 1950. It was quoted in the GFCT’s decision Southwest, 1 BverfGE, 32 (1951).

See Equality, 3 BverfGE 225, 234 1953.

This change in the parameter used by the German Tribunal has been evident in the Klass case (30 BVerfGE 1 1970).

Maastricht-Urteil, BVerfGE 89, 155, October 12, 1993, and Lissabon Urteil, 2 be 2/08, June 30, 2009. On the point, see Preuss (2011), p. 429.

For the decisions of the Italian Constitutional Court declaring ECHR provisions as interposed norms, see decisions n. 347/2007, n. 348/2007, and n. 39/2008.

Fusaro and Oliver (2011).

See Elster (1991), p. 448.

On the NSF and its role in the transition, see Pasti (1997).

The President of the Committee, Antonie Iorgovan, was formally considered as an independent, but he actually had a communist background and supported political positions close to the NSF.

See Lungu (2002), p. 397.

Elster (1991), p. 463.

The country already existed since the dissolution of the Austro-Hungarian Empire, but the 1920 Constitution organized it as a unitary State without any federal elements. For an overview of Czech constitutional history, see Kuklík (2015).

Probably, this denomination highlighting the peaceful way the transition happened has been invented by the dissident Rita Klimovà, which then became the Czech Ambassador in United States.

On this process, see Elster (1994), p. 10.

Constitutional Act n. 542, November 25, 1992.

The Czech one may be considered a poly-textual Constitution. It is composed by the text effectively named Constitution and by the mentioned Charter of Rights, but also by the Constitutional Acts connected to the dissolution of Czechoslovak Federation, the Constitutional Acts passed on specific topics (such as those on self-government and on the referendum for the accession to the EU), and the Constitutional Acts defining the national borders.

It must be noted that while the Czech Republic adopted the Charter without any modification, simply stating that it is part of the Constitution, Slovakia integrated it in the Constitution and partially modified its content.

On this amendment process, which affects also the relationship between Romanian legal system and the European Heritage, see Venice Commission (2014).

This approach is not common among European countries. Only Turkey, Greece, and Azerbaijan provide for a similar kind of unamendability of some provisions.

For further detail on the procedures for constitutional amendments in Romania, see Valea (2011), p. 91.

Cfr. decision n. 85, September 3, 1996; decision n. 82, April 27, 2000.

The Court intervened in constitutional revision also with the decisions n. 6, July 4, 2007 and n. 799, June 17, 2011, but they were just “notifications” of the unconstitutional elements the Parliament had to modify before to pass the constitutional acts.

See decision n. 148, April 16, 2003.

See decision n. 356, September 23, 2003 and decision n. 285, October 15, 2003.

See Blokker (2013), p. 187.

Constitutional Law n. 195, September 10, 2009.

Czech Constitutional Court, judgment n. Pl. ÚS 27/09, September 10, 2009.

On this decision, see Williams (2011), p. 33.

For a general overview of the role played by the Commission toward these countries, see the Commission web site (http://www.venice.coe.int/WebForms/pages/default.aspx?p=03_Mediterranean).

Ben Ali succeeded to Bourguiba, the first President of Tunisia and leader of its independence, in 1987, with the so-called medical coup d’état, allowing him to take the charge of President assuming the incapability for health reasons of the 80 years old Bourguiba.

See Venice Commission (2013).

Venice Commission (2013) § 214.

Venice Commission (2013) § 215.

The Charter, “octroyed” by the King, was approved by referendum and had the aim to answer to the request for more popular participation in the institutions.

Even in this case, the Constitution derived from a “concession” of the King, and was later approved by referendum.

The reform originated from the need of change derived from the popular support to the Socialist Party led by Abderrahmane El-Youssefi, returned from the exile in 1995.

Even changing a bit their wording, constitutional provisions did not change their content: the 1962 Constitution provided that the “monarchic form of state as well as the provisions relating to the Muslim religion may not form the subject of a constitutional amendment” (Article 108); the 1970 Constitution stated that “the royalist system, and provisions relating to Islam, shall not be subject to revision” (Article 100); the 1972 Constitution declared that “neither the State system of monarchy nor the prescriptions related to the religion of Islam may be subject to a constitutional revision” (Article 106); the 1992 Constitution said that “the monarchic form of the State as well as the provisions relating to the Islamic religion cannot be the object of a constitutional revision” (Article 100).

It is noteworthy that the King has always been the sole initiator of constitutional reforms, even though this competence has been assigned also to the Parliament and to the head of government since the 1962 Constitution.

See Morlino (2008), p. 70.

See Biagi (2015).

In Europe, unamendable clauses are provided in the Constitutions of Azerbaijan, Belgium, Czech Republic, Cyprus, France, Germany, Italy, Luxemburg, Moldova, Romania, Russia, Turkey, and Ukraine.

On this point, see Haberle (2000), p. 79.

See n 4.

Sajò (1996).

See Brown (2002) and Brown (2003).

Roznai (in this book), p. 47.

100

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Titel: Unamendable Constitutional Provisions and the European Common Constitutional Heritage: A Comparison Among Three Waves of Constitutionalism
verfasst von: Valentina Rita Scotti
Verlag: Springer International Publishing
Buch: An Unamendable Constitution?
Print ISBN: 978-3-319-95140-9

Electronic ISBN: 978-3-319-95141-6

Copyright-Jahr: 2018
DOI: https://doi.org/10.1007/978-3-319-95141-6_14