In , both chambers of the Federal Assembly declared a Volksinitiative to amend the Constitution to be invalid for violating the internationally recognized peremptory prohibition of refoulement. The Role of National Courts The above analysis, even if correct at its core, is partial in its scope. In contrast, derived constituent power, while performing the same function of establishing constitutional laws, is a constraint power that acts according to the formal procedures as established in the constitution. Nevertheless, it has to be remembered that with the limited judicial review of legislation during the Weimar period, judicial review over constitutional amendments was naturally not recognised. States are bound by certain supranational rules. Accordingly, as in conflicts between ordinary law and the constitution, when courts face a conflict between constitutional norms, they have to determine, as part of the judicial process, what is the legal norm to be applied.

This differs from the example of South Africa, in which the Constitutional Court declared the Constitution of to be unconstitutional, since the Interim Constitution of empowered the Constitutional Court to review the compliance of the draft Constitution with thirty-four agreed-upon principles. The use of amendments of the previous constitution in order to achieve the transformation, created an element of continuity with the previous authoritarian regime, which hindered the democratization and liberalization process. I use the term unamendability to describe the resistence of constitutional subjects provisions, principles or institutions to their amendment. An unamendable constitution is doomed to fail. Would that mean that natural law is not superior to positive law? Furthermore, it is the basic proposition of this article that the amendment power, though an extraordinary one, is not sovereign. For instance, it has been argued that the Indian basic structure doctrine of implied limitations on the amendment power is linked to the concepts of natural law and natural rights.

dissertation pouvoir constituant originaire pouvoir constituant dérivé

See also Zimmermann n Part I Rex Bookstore They are not above the constitution; they are solely above the constitutional amendment power.


It considers the theory and practice of the relationship between natural law, international law or other originairre law, and domestic constitutional law in a comparative prism.

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At the outset, it is important to admit that from a purely practical point of view, in order to avoid the double amendment procedure tactic, a clever constitution- maker would draft self-entrenched unamendable provisions, i. The secondary constituent power, as a delegated power, acts as a trustee of the primary constituent power. It has both summarized current debates on their use and explained what is in fact meant when talking about supra- constitutional limits. By that, unamendability risks impoverishing democratic debates.

By Leticia Kreuz and Yaniv Roznai. This power is unconstrained by any requirement to amend the constitution in accordance with natural law, which is indeterminable. In its later opinion, the Federal Council distinguished between treaty obligations, which state parties can legally terminate and were at issue in the initiative, and jus cogens norms, which were at issue in the initiative. Today, judicial review of constitutional amendment is an existing practice in various jurisdictions.

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Ultimately, it would be subject to the highest hierarchical normative national norm—the constitution. Explicit Limits 23 1.

dissertation pouvoir constituant originaire pouvoir constituant dérivé

Since the two amendments contradicted the natural right of the unborn to life, they should be invalidated. Dicey, Constitutional Revision, 11 L. As Gerald L Neuman remarks: A constitution has an inner unity, and the meaning of any one part is linked to that of other provisions. A deeper look reveals otherwise.

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Italian scholars have contended that the amendment procedure cannot be used to deny fundamental norms principi supremi propounded and protected by the constitution, such dissertarion democracy, inviolable rights, and the rigidity of the constitution itself. Its will is always legal. Of course, it is possible for the Municipal Law of an individual State by custom or by statute to adopt rules of International Law as part of the law of the land, and then the respective rules of International Law become ipso facto rules of Municipal Law.


Supra-national constitutionalism posited limits on national constitution—making grounded in an evolving set of foundational universal norms derived from the understandings of basic right coonstituant wrong developed by consensus among the community of nations. A Comparative Study Hart Publishing — This is very bad. Similarly, the exercise of the derived constituent power may cover consittuant entire constitution.

It is now in the public sphere shaped by the hands of the judiciary until its abolishment or replacement. Indeed, if the court reviewed a provision of an original constitution that established its own authority, this might involve the logical subordination difficulty. In response to such an initiative, the Federal Council can issue a recommendation, based upon which the Federal Assembly Bundesversammlung reviews the initiative for its compliance with several elements as established in the Constitution.

See also Sheldon S. Judicial review of amendments serves as a mechanism to enforce those limitations. The question of change and identity is an old one. Just as ordinary legislation retreats when it conflicts with constitutional norms, so do constitutional amendments retreat when they conflict with unamendable provisions. Following the delegation theory presented in section II, it is argued that the primary constituent power may explicitly limit the inferior secondary constituent power.

Separation of Powers 39 2.

dissertation pouvoir constituant originaire pouvoir constituant dérivé

What if the positive constitution did not include such recognition? States are bound by certain supranational rules.