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I·CONnect

Blog of the International Journal of Constitutional Law

ICON’s Current Issue (Table of Contents)

Volume 15 Issue 3

Table of Contents

Editorial

In Memoriam: Norman Dorsen (1930-2017)

I.CONic Interview

Ruth Rubio Marin and Ruth Bader Ginsburg, “Notorious RBG”: A conversation with United States Supreme Court Justice Ruth Bader Ginsburg

Articles

Toni Marzal, From Hercules to Pareto: of bathos, proportionality and EU law

Neil Duxbury, Judicial disapproval as a constitutional technique

Anne Peters, The refinement of international law: From fragmentation to regime interaction and politization

Ben Schonthal, Formations of Buddhist constitutionalism in South and Southeast Asia

Critical Review of Governance

Greg Taylor, The constitutionality of election thresholds in Germany

 Critical Review of Jurisprudence

Jau-Yuan Hwang,  Ming-Sung Kuo and Hui-Wen Chen,  “The clouds are gathering”:  Developments in Taiwanese constitutional law—The year 2016 in review

Pietro Faraguna, Michele Massa and Diletta Tega, coordinated by Marta Cartabia, Developments in Italian constitutional law: The year 2016 in review

Luc Lavrysen, Jan Theunis, Jurgen Goossens, Pieter Cannoot, and Viviane Meerschaert, Developments in Belgian constitutional law: The year 2016 in review

 I.CON: Debate!

Marco Dani, National constitutional courts in the European constitutional democracy: A reply to Jan Komárek

Elias Deutscher and Sabine Mair, National constitutional courts in the European constitutional democracy: A reply to Jan Komárek

Jan Komárek, National constitutional courts in the European constitutional democracy: A rejoinder

I.CON: Debate!

Sujit Choudhry, Transnational constitutionalism and a limited doctrine of unconstitutional constitutional amendment:  A reply to Rosalind Dixon to David Landau

Rosalind Dixon and David Landau, Transnational constitutionalism and a limited doctrine of unconstitutional constitutional amendment:  A rejoinder to Sujit Choudhry

Review Essay

Elizabeth A. O’Loughlin, Kenya’s Constitution in a Global Context. Review of James Thuo Gathii. The Contested Empowerment of Kenya’s Judiciary, 2010-2015: A Historical Institutional Analysis; Morris Kiwinda Mbondenyi, Evelyne Owiye Asaala, Tom Kabau and Attiya Waris (eds). Human Rights and Democratic Governance in Kenya: A Post-2007 Appraisal

Book Review Symposium: It’s the Institutions, Stupid!

Michaela Hailbronner, Introduction

Scott Stephenson, The study of institutions in constitutional theory

Michael Pal, Comparative constitutional law and Waldron’s Political Political Theory

Jelena von Achenbach, Separation of powers and the role of political theory in contemporary democracies

Book Reviews

Carlos Closa and Dimitry Kochenov (eds). Reinforcing Rule of Law Oversight in the European Union (Oliver Garner)

Ron Levy and Graeme Orr. The Law of Deliberative Democracy (Pablo Marshall)

Ingrid Piller. Linguistic Diversity and Social Justice. An Introduction to Applied Sociolinguistics (Jacqueline Mowbray)

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Published on November 10, 2017
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Book Review: Eric C. Christiansen on Angioletta Sperti’s “Constitutional Courts, Gay Rights and Sexual Orientation Equality”

[Note: In this installment of  I•CONnect’s Book Review Series, Eric C. Christiansen reviews Angioletta Sperti’s “Constitutional Courts, Gay Rights and Sexual Orientation Equality” (Hart Publishing, 2017).]

Eric C. Christiansen, Professor of Law, Golden Gate University School of Law, San Francisco, California USA and Visiting Fulbright Professor, University of Valencia, Spain.

Angioletta Sperti’s new book is published at an excellent time.  Recent years have seen a wave of conspicuous legal victories for gays and lesbians as well as a marked increase in legislation addressing LGBT rights both expansively and restrictively. It is rare for so many jurisdictions to take up such closely related constitutional issues on such a compressed timeline. In less than two decades, nearly every European and North (and South) American jurisdiction has addressed the rights of gays and lesbians generally and the issue of marriage equality specifically. While progressive change is far from universal even in those geographic regions—and regressive responses dominate the remainder of the globe—it is an exceptionally good time to pause and closely evaluate these developments from the perspective of comparative constitutional law.

In her book, Constitutional Courts, Gay Rights and Sexual Orientation Equality, Sperti engages deeply in such investigation. Moreover, Sperti and her book have an even more ambitious agenda.  In addition to explaining recent legal developments related to “sexual orientation equality,” she wishes to uncover and use recent sexual orientation legal developments to elucidate insights about transnational constitutional borrowing and inter-branch dialogue in constitutional democracies. The pleasant surprise of this book is that Sperti accomplishes both, and does so insightfully and convincingly.

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Published on November 10, 2017
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Developments in Dutch Constitutional Law: The Year 2016 in Review

Editor’s Note: Today we publish the 2016 Report on Dutch constitutional law, which appears in the larger 44-country Global Review of Constitutional Law, now available here in a smaller file size for downloading and emailing.


Nick Efthymiou, Erasmus University Rotterdam; Roel de Lange, Erasmus University Rotterdam

I. Introduction

In this contribution, we will first give a general picture of the Constitution of the Kingdom of the Netherlands, with a focus on the absence of constitutional review of primary legislation by the courts. Secondly we will discuss two issues that were important in constitutional developments in 2016. These are a referendum on an EU Association Agreement with Ukraine and a court case involving climate change. They illustrate major issues in Dutch constitutional law. The Netherlands does not have a constitutional court, so in this respect our contribution will differ from most other country reports.

II. Constitutional History

Article 115, par. 2 of the Dutch Constitution as revised in 1848 introduced the formula that ‘statutes are inviolable’. The Hoge Raad (Supreme Court) of the Netherlands judged in 1961 that this wording (then Article 131, par. 2) meant that it had no power to oversee the constitutionality of a certain Act of Parliament, including the procedural aspects. The appellant had claimed that this Act was not in fact an Act of Parliament because it had never been approved in a proper manner and according to the appropriate constitutional procedural rules. The Hoge Raad ruled that it had to assume that the legislature itself had considered the constitutionality of the Act including compliance with the provisions regarding legislative procedure, and that courts have no power to second-guess the interpretation that the legislature itself had given to the Constitution. Article 131, second paragraph, intended to protect primary legislation against constitutional review by the courts. It has always been uncontroversial that this did not apply to all other types of legislation, such as delegated legislation by statutory instruments, municipal legislation, by-laws enacted by professional and economic public authorities, and ministerial legislation. All of these types of rules could be constitutionally reviewed by all courts.

During the 1960s and 1970s, proposals were made to revise the Dutch Constitution, including one by an Official Commission on the Revision of the Constitution to include judicial constitutional review of primary legislation. There was some academic support for this, and the Hoge Raad also appeared to be sympathetic to the idea. Most of the proposals considered constitutional review by ordinary courts, in parallel to their powers with regard to the effect of international law in the Dutch legal order. A separate, specialized constitutional court was hardly ever considered.

However, little support was found for this in political circles.

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Published on November 7, 2017
Author:          Filed under: Developments
 

What’s New in Public Law

–Angélique Devaux, Cheuvreux Notaires, Paris, France, Diplômée notaire, LL.M. Indiana University Robert H. McKinney School of Law

In this weekly feature, I-CONnect publishes a curated reading list of developments in public law. “Developments” may include a selection of links to news, high court decisions, new or recent scholarly books and articles, and blog posts from around the public law blogosphere.

To submit relevant developments for our weekly feature on “What’s New in Public Law,” please email contact.iconnect@gmail.com.

Developments in Constitutional Courts

  1. Spain’s Constitutional Court cancels Catalonia’s declaration of independence.
  2. Moldova’s Constitutional Court approved the proposal to change the official language from Moldovan to Romanian.
  3. The Supreme Court of Canada approved development of a ski resort on indigenous lands.
  4. Brazil’s Supreme Court suspended a governmental decree changing the definition of slavery.
  5. The French Constitutional Court ruled a 3% surtax on dividend unconstitutional.

In the News

  1. The election of the head of the Ukraine Constitutional Court failed.
  2. Dubai now allows non-Muslims to write wills.
  3. A federal judge in Washington blocked President Donald Trump’s transgender military ban.
  4. United States Supreme Court Justice Ruth Ginsburg confirmed that she is not leaving the Court.
  5. The Constitutional Court of South Africa is expected to hear a case about the constitutionality of the Black Economic Empowerment (BEE).
  6. Venezuela’s Opposition Leader seeks refuge in the Chilean ambassador’s residence after being targeted for arrest.
  7. The Netherlands Electoral Council announced a referendum on a surveillance law next year.

New Scholarship

  1. Richard Albert and David R. Cameron, eds., Canada in the World, Comparative Perspectives on the Canadian Constitution, Cambridge University Press (2017) (discussing the evolution of the Canadian Constitution since the British North America Act, 1867 and the growing global influence of the Constitution and decisions of the Court on legislatures and courts in other countries)
  2. Tom Gerald Daly, The Alchemists, Questioning our Faith in Courts as Democracy-Builders, Cambridge University Press (2017) (presenting a searching critique of the contemporary global model of democracy-building for post-authoritarian states, arguing that it places excessive reliance on courts)
  3. Mohamed A. Arafa and Adam J. Revello, Terrorism Under the Umbrella of International Criminal Law: Legislating Terror in Egypt Under a Draconian Counter-Terrorism Law, Ex Aequo Et Bono, in Europe in Crises: Crime, Criminal Justice and the Way Forward, Essays in Honour of Nestor Courakis, Editions Ant. N. Sakkoulas Limited Partnership (Athens, Greece) (Fall 2017) (exploring terrorism in international criminal law with reference to the post‐Morsi terrorist attacks in Egypt as a case study).
  4. Mohamed Badar and Masaki Nagata, Modern Extremist Groups and the Division of the World: A Critique from Islamic Perspective, Arab Law Quarterly 31 (2017) (examining the evolution of Islamic Dogma throughout Islamic history, their misinterpretation by extremist groups and their modern legal status)
  5. Benjamin Schonthal, Formations of Buddhist Constitutionalism in South and Southeast Asia, International Journal of Constitutional Law, Vol. 15 (2017) (examining the Buddhist influence on constitutions in contemporary South and Southeast Asia)
  6. Ilya Somin, Obama’s Constitutional legacy, 65 Drake Law Review 1039 (2017) (analysing the Obama’s legacy in constitutional law)
  7. Rivka Weill, Secession and the Prevalence of Militant Constitutionalism Worldwide (examining secession approaches in world constitutions)

Calls for Papers and announcements

  1. The Younger Comparativists Committee (YCC) of the American Society of Comparative Law (ASCL) invites submissions for its Seventh Annual Conference, to be held on April 20-21, 2018, at Case Western Reserve University School of Law. The deadline for submission is December 31, 2017.
  2. The University of Ottawa, Faculty of Law invites paper proposals for a conference to mark the retirement of Chief Justice Beverley McLachlin, to be held in Ottawa, Canada, on April 10-11, 2018.
  3. The City University of London organizes a conference on “Modelling Divergence(s) and Convergence(s) of the EU in the World,” to be held on November 24, 2017, in London, United Kingdom.
  4. The Koc University Law School, Istanbul, Turkey launches a new website to  assess the impact of the individual application system to the Turkish Constitutional Court for protection of human rights from a comparative perspective. The Law School welcomes submission in English, German and French.
  5. The Northern Public Law Forum is pleased to announce the annual seminar series on public law that rotates around law schools in Northern England. The inaugural seminar will be held in January 2018 at the University of Sheffield, followed by the University of Liverpool (2019), and the University of York (2010).
  6. The Asian Journal of Comparative Law invites submissions for future issues.
  7. The University of Illinois College of Law is organizes the annual Illinois-Bologna Conference on “Constitutional History: Comparative Perspectives,” to be held on November 13-14, 2017, in Bologna, Italy.
  8. The Hague Academy of International Law invites applications for the 2018 summer courses in Public International Law and Private International Law.
  9. L’Amicale des Référendaires of the Court of Justice of the European Union, the University of Luxembourg, and the University of Groningen organize a conference on “EU citizenship, Federalism and Rights,” to be held on November 17–18, 2017, at the Court of Justice of the European Union / University of Luxembourg.
  10. The Asian Law Institute (ASLI) and Seoul National University (SNU) School of Law invite submissions for the 15th ASLI Conference on “Law into the Future: Perspectives from Asia.” The deadline for submission of abstracts is November 24, 2017.
  11. The Fordham Urban Law Center, in partnership with the Mackenzie Presbyterian University (MBU), invite submissions for the Fifth Annual International and Comparative Urban Law Conference to be held on June 21 and July 22, 2018, at MBU in Sao Paulo, Brazil. The deadline for proposal submissions is February 19, 2018.

Elsewhere Online

  1. David R. Cameron, After Catalonia declares independence, Spain takes over and sacks the government, Yale Macmillan Center
  2. Richard Stacey, The Tenuous Connection between Popular Sovereignty and Constitutional Referendums, Blog of the IACL, AIDC
  3. Sedef Asli Topal, The Future of Europe: Is Europe really moving forward to Federalism?, JURIST
  4. Anne Sanders and Luc von Danwitz, Defamation of Justice – Propositions on how to evaluate public attacks against the Judiciary, Verfassungsblog
  5. Mohamed Arafa, Humanity Lost the Legend: Cherif Bassiouni, The Godfather of International Criminal Law and Justice, Jurist.org
  6. Laurence H. Tribe, The Supreme Court should strike down the death penalty, The Washington Post
  7. Emily Baumgaertner, A 40-Foot Cross Has Honored War Dead for 90 Years. Is It Unlawful?, The New York Times
  8. Safura Abdool Karim, Eviction and the Law: What the Constitutional Court says, News24
  9. Peter C. Oliver, Canada @150, UK Constitutional Law Association
  10. Tania Pagotto, Italy: Widespread conscientious objection violates right to health and right to work in dignity, reprohealthlaw blog
  11. Argelia Queralt Jiménez, Still not a Dictatorship: Spanish Law and Judiciary in Times of Constitutional Crisis, Verfassungsblog
  12. Adem K. Abebe, Beyond Catalonia: Secession movements in Cameroon, Nigeria, Yemen and Kurdistan, ConstitutionNet
  13. Julian R. Murphy, Justice Edelman’s originalism, or hints of it, AUSPUBLAW
  14. Elisa Arcioni and Helen Irving, Form over substance? Foreign citizenship and the Australian Parliament, Blog of the IACL, AIDC
  15. Pierre de Vos, No, the constitution does not guarantee a right to be presumed innocent by everyone until proven guilty, Constitutionally Speaking
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Published on November 6, 2017
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Developments in UK Constitutional Law: The Year 2016 in Review

Editor’s Note: Today we publish the 2016 Report on United Kingdom constitutional law, which appears in the larger 44-country Global Review of Constitutional Law, now available here in a smaller file size for downloading and emailing.


–Stephen Tierney*    Asanga Welikala+    Tom Gerald Dalyǂ

I. Introduction

The idea of ‘union’ was the central constitutional focus for the United Kingdom in 2016. The nature of the United Kingdom (UK) as a multinational state was radically overhauled by the Scotland Act 2016 and by the bill that became the Wales Act 2017. But 2016 will surely be best remembered for the referendum held on membership of the European Union (EU) and the dramatic decision taken by the British people to leave a union that has exerted such an extensive influence over the British constitution since 1973.

In this report, we reflect upon these developments and the interactions between devolution and ‘Brexit’. In light of the radical changes to the internal territorial union and the UK’s external union with Europe, we can surely say that 2016 was a seminal moment in the development of the modern United Kingdom constitution to rank alongside 1885, 1911, 1922, and 1997.

II. The Constitution and the Court

The unentrenched nature of the British Constitution, the evanescent boundaries between ‘constitutional’ law and ordinary law (and between law and politics more widely), and the less central role for the courts in a system where Parliament is supreme marks the United Kingdom as an outlier in a world of increasingly detailed and judicially regulated constitutions.

The defining characteristic of the UK constitution is parliamentary supremacy, which means that the courts have traditionally taken a back seat in constitutional matters. This changed to some extent with the Human Rights Act 1998, which gave the courts more interpretive discretion without introducing the power to strike down statutes.[1] Membership of the European Union has proved difficult for the courts in terms of reconciling parliamentary supremacy with the self-declared supremacy of EU law.[2] But it is notable that the courts have been very careful not to overstep their proper constitutional position. This is evident when we look at devolution. The courts have taken a light touch to policing the boundaries of competence of the devolved territories–Scotland, Wales, and Northern Ireland–with few cases coming before the courts, and these rarely raising issues of major controversy.

Nonetheless, flexibility and pragmatism are appropriately viewed as the defining virtues of the British constitutional tradition.[3] In this context, constitutional change has taken place through ordinary legislation, supported by a network of prerogative power (the royal prerogative power was originally exercised by the reigning monarch, but is now generally exercised by Government ministers in the name of the Sovereign[4]), and constitutional conventions which are not legally enforceable. Since the courts have not been central players in constitutional change as they have elsewhere, it is therefore particularly notable that the major cases which emerged in the context of the Brexit referendum have focused entirely upon the issue of Parliament’s supremacy and its interaction with the devolution statutes, the prerogative power, and constitutional conventions.

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Habea(r)s Corpus: Some Thoughts on the Role of Habeas Corpus in the Evolution of Animal Rights

Saskia StuckiSenior Research Fellow, Max Planck Institute for Comparative Public Law and International Law, Heidelberg, and Juan C. Herrera, former law clerk of the Constitutional Court of Colombia and currently PhD Researcher and Teaching Assistant of Constitutional Law at Universitat Pompeu Fabra UPF, Barcelona

Earlier this year, a spectacled bear named “Chucho” was given his proverbial day in court, in the Supreme Court of Colombia (Civil Chamber of Appeals). On behalf of Chucho, who is held in the zoo of Barranquilla, a citizen invoked the constitutional right and action of habeas corpus (article 30 of the Colombian Constitution) to challenge the legality of his confinement. In a ruling on 26 July 2017, Judge Luis A. Tolosa granted habeas corpus relief to the bear and ordered his release from the zoo and relocation to a more species-appropriate habitat.

Succeeding the landmark case of Cecilia the chimpanzee – who was granted a writ of habeas corpus by an Argentinian court in November 2016 – the Chucho case has yielded yet another extraordinary court decision resulting not only in a ruling to free an animal from captivity in a zoo, but more fundamentally, in an (as of now still isolated) act of judicial recognition of animals’ legal personhood and rights. This sheds some light on the possible role that habeas corpus may come to play in the still nascent evolution of legal animal rights.

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Published on November 4, 2017
Author:          Filed under: Analysis
 

Developments in Cameroonian Constitutional Law: The Year 2016 in Review

Editor’s Note: Today we publish the 2016 Report on Cameroonian constitutional law, which appears in the larger 44-country Global Review of Constitutional Law, now available here in a smaller file size for downloading and emailing.


Charles Manga Fombad, Professor of Law, Institute for International and Comparative Law in Africa, Faculty of Law, University of Pretoria, South Africa

I. Introduction

The most significant constitutional event in Cameroon in 2016 was the peaceful protests, demonstrations, and sit-in strikes which were initiated by Common Law Lawyers and Teachers’ Trade Unions which has paralysed all official activities in the two Anglophone regions of Cameroon since October 2016 and led to a military intervention which has resulted in many deaths, injuries, and the detention of numerous citizens. The present crisis is no surprise to even the most casual observer of the Cameroonian political scene. In fact, Cameroon’s apparent political stability belies deep-seated centrifugal forces of fragmentation which have only been kept dormant by repressive authoritarian governmental structures and systems which successfully defied the so-called ‘third wave of democratisation’ that swept through Africa in the 1990s. Whilst almost all African countries underwent substantial constitutional reforms, the token reforms that took place in Cameroon in 1996 hardly provided any foundation for constitutionalism to take root.

This report mainly focuses on the political and constitutional crisis that exploded in 2016. However, to understand this crisis, it is necessary to briefly look at the complex constitutional history of Cameroon. In fact, the 1996 Constitution which operates today in Cameroon is a paradox that in many respects reflects the history of the country. The second part of this report will briefly provide a background constitutional history of the country, the third part will highlight the present constitutional crisis and the final part will reflect on how the present challenges can be overcome.

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Published on November 2, 2017
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Electoral Authoritarianism Revisited (I-CONnect Column)

Aslı Bâli, UCLA School of Law

[Editor’s note: This is one of our biweekly I-CONnect columns. Columns, while scholarly in accordance with the tone of the blog and about the same length as a normal blog post, are a bit more “op-ed” in nature than standard posts. For more information about our four columnists for 2017, see here.]

The field of comparative politics has been grappling with questions related to electoral authoritarianism for some fifteen years at least. For those of us interested in the Middle East, this led to an examination of how the one-party states of the region had adopted the trappings of elections to satisfy international demands without undertaking any actual liberalization. Scholars proposed new concepts to explain how authoritarians had adapted ostensibly democratic institutions to their purposes. From Fareed Zakaria’s early warning about the rise of “illiberal democracy,”[1] to the concepts of hybrid regimes,[2] competitive authoritarianism[3] and the phrase “electoral authoritarianism” itself,[4] new terms proliferated. This terminology defined a set of factors that distinguished countries transitioning, however imperfectly, to democracy (or democratizing) from those that had appropriated aspects of democratic practice to fashion new forms of durable authoritarianism. A prime example in the region at the time was Hosni Mubarak’s authoritarian rule in Egypt, punctuated by regular elections in which the dominant NDP party would win overwhelming majorities. On election day, little might distinguish Egyptian voting booths from those in Turkey in the early 2000s, but the electoral authoritarianism literature enabled students of the two countries to identify salient differences. On this account, Turkey was firmly in the democratizing camp at the time, Egypt was not and the distinction seemed clear.

Returning to that literature, much of which followed from an influential 2002 issue of the Journal of Democracy, the distinction between imperfect democracies and the deliberate manipulation of democratic means to illiberal ends now seems more blurred. Zakaria’s lament about the rise of illiberal democracy in the United States is one indicator that there has been considerable democratic erosion across all regime types. Similarly, anxieties about the rise of nativist parties and populist leaders across Europe attest to new challenges in consolidated democracies not anticipated by the earlier literature. And the distinction between Turkey and Egypt that seemed so clear fifteen years ago has given way to increasing convergence. The durability of authoritarianism in Egypt was perhaps overstated in light of the popular uprising in 2011 that ousted Mubarak. Yet, that uprising gave way in two short years to a vicious counter-revolution that has, if anything, increased the repressive capacity of the state. At the same time, Turkey, which was celebrated fifteen years ago for democratizing,[5] has now upended democratic theory with its dramatic reversal of course, as Jason Brownlee has argued.

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Published on November 1, 2017
Author:          Filed under: Analysis
 

Is Ecuador Heading Towards a Constitutional Crisis?

–Mauricio Guim, S.J.D. candidate and Presidential Fellow in Data Science, University of Virginia School of Law & Augusto Verduga, LL.M. candidate, Universidad Andina Simón Bolívar, Quito, Ecuador

The Republic of Ecuador is going through one of the most interesting transitions in the world. This past summer, in a contested election that almost tore the country apart, Lenin Moreno was elected President by less than three percent of the popular vote.[1] The first presidential candidate in a wheelchair, Moreno ran as the chosen successor of Rafael Correa to take over Correa’s “Citizen’s Revolution.”[2] Now, after six months in power, Moreno has broken with his predecessor and is proposing a referendum to repeal the constitutional provisions that allow Correa to run a third time and return as President.[3]

The Constitution of Ecuador did not originally allow the President to serve more than two terms.[4] However, in 2014 Congress amended the Constitution to remove term limits and authorize the “indefinite reelection” of all public officials including the President.[5] The amendments were controversial. The main dispute focused on whether Congress could approve the changes by acting alone, or whether a more demanding procedure of amendment needed to be followed.

The Constitution of Ecuador establishes a tiered system of constitutional change, with a baseline procedure for amendments that can be carried out by Congress alone, but which also requires that certain changes be carried out through more demanding procedures. The answer thus depended on whether the amendments restricted constitutional rights and guarantees,” altered the “fundamental structure” of the Constitution, or changed “character and constituent” elements of the State.[6] If the amendments fell in these categories, the changes could only be approved by a more demanding procedure of constitutional change, requiring a referendum or constituent assembly. Supporters of the amendment believed that the changes could be approved by Congress. Among other arguments, critics stated that the amendments altered the “fundamental structure” of the Constitution and had to be passed in a referendum or constituent assembly.

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Published on November 1, 2017
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Judicial Review of Peace Amendments in Colombia: Towards Supraconstitutional Rules and Plurality Opinions?

Vicente F. Benítez R., JSD student at NYU and Constitutional Law Professor at Universidad de La Sabana (Colombia)

In a decision recently analyzed here on I-CONnect by Gonzalo Ramirez-Cleves, the Colombian Constitutional Court upheld a constitutional amendment that purports to shield the peace agreement between the FARC guerrillas and the Colombian Government. Although Ramirez-Cleves has summarized some of the main points of the decision and the reader can find a detailed description there, there are some issues that, in my view, raise important theoretical questions about the role of the Court as guardian of the Constitution, as well as about the scope of the substitution doctrine.[1]

In this entry I will focus my analysis just on three points. But before examining them, two brief disclaimers are important. First, the Constitutional Court has not published its final decision yet. It is already a tradition of the Court’s decision-making procedure that, before the official publication of the decision, it issues a press release mentioning–but not elaborating on–the broad reasons that led to the outcome.[2] Therefore, this is a preliminary analysis that draws on the press release’s content and probably might change in light of the final text of the Court’s opinion. Secondly, I don’t mean to answer the theoretical problems that I will present. My purpose is much more modest: I just want to bring up some concerns and posit some possible consequences that, from the perspective of constitutional theory, stem from the press release.

I. Supraconstitutional Congressional Clauses?

One of the main challenges of any peace accord involves its legal implementation. In the Colombian case, the agreement established several obligations that cannot be enforced given its incompatibility with some constitutional and legal rules. Consequently, in 2016 Congress passed an amendment to create an abbreviated procedure to enact those constitutional amendments and statutes required to implement the peace pact.[3] Thanks to this expedited path, in May 2017 the Colombian Congress approved an amendment providing that those aspects of the agreement related to international human rights law (IHRL) norms or international humanitarian law (IHL) rules “shall be mandatory interpretive parameters as well as reference standards for assessing the validity and application of the norms and statutes aimed at implementing the final agreement […]”.[4] As a result, “[…] any legal development to implement the Final Agreement […] shall be coherent with it […] in order to preserve the contents, commitments, spirit and principles of the Final Agreement”.[5]

One plausible interpretation of the previous excerpts would run as follows: if several constitutional amendments are required to develop the agreement, those amendments must be coherent with it. Even more, if an amendment passed by Congress to implement the agreement is not compatible with those elements of the accord connected to IHRL or IHL rules, it will be invalid. Presumably, in this scenario the Court would have to quash the amendment. If we accept this reading, a possible implication would be that the said IHRL and IHL components of the agreement are supraconstitutional. Let me explain why.

Following Alf Ross[6] and Leopoldo Uprimny[7], I have argued elsewhere[8] that, in the Colombian case, any limit to constitutional amendments (be it procedural or substantive, explicit or implied) necessarily and logically has to be a supraconstitutional norm. In effect, (a) the Constitutional Court has consistently held that a constitutional amendment has the same rank as a constitutional provision. According to the Court, a constitutional amendment cannot be understood as a rule inferior to the Constitution because otherwise most of them would be unconstitutional given that they, to a greater or lesser extent, seek to modify (and in some way contradict) the Constitution;[9] (b) The Constitutional Court has also concluded that a constitutional amendment can be quashed in case it infringes the basic structure of the Colombian Constitution or the procedural rules for its amendment;[10] (c) To declare a rule as an invalid one (in our case, as an unconstitutional amendment), it must have breached a higher norm; (d) Consequently, any limit to a constitutional amendment, must be a supraconstitutional standard (a+b+c).

According to this logic, it reasonable to ask whether the Congress has created a supraconstitutional rule that constrains the substantive content of those constitutional amendments whose purpose is the implementation of the agreement. If the answer to this question is positive, then we might wonder whether the Colombian Congress has the competence to create supraconstitutional norms. Recognizing that this assertion deserves further reflection, I think Congress should not be authorized to do so for several reasons, but this is the main one: if the legislature could institute supraconstitutional rules, it would become a sovereign body that can define its own competences on constitutional amendment issues without any legal restrictions. In other words, if Congress has the attribution to amend the Constitution, but the same Congress can define the limits to this power, it can then modify this attribution as it deems fit. Indeed, the famous ‘substitution doctrine’ would be ineffective because although the Court can establish limits to the amendment power derived from the basic structure of the Constitution, Congress could easily circumvent them by creating new supraconstitutional norms. To pose a tragic but legally feasible scenario under the previous assumptions, Congress could remove all restrictions to amend the Constitution given that it can create (and arguably repeal) those supraconstitutional norms that restrict its actions.[11]

II. Supraconstitutional Judicial Clauses?

Even though this is not the first time,[12] the Court ‘saved’ the amendment by adding some interpretations to its textual content. In other terms, the Court concluded that in order to avoid the annulment of the amendment due to a possible violation of the constitutional basic structure, it should be read “in conformity with the Constitution”. To accomplish this mission, the Court added four hermeneutical standards that harmonize the amendment with the Constitution. In Ramirez-Cleves’ post there is an explanation of the content of these criteria. I just want to put forward the possibility that, by doing this, the Court has created supraconstitutional rules.[13] Let me explain why.

In the European (Kelsenian) model of judicial review, the existence of additive decisions is a well-established and traditional practice. Particularly in Italy it is widely known that when there is a partial legislative omission, the Constitutional Court can fill this gap to avoid the annulment of a given statute. Some criticisms have been leveled against this kind of decision, contending that the Court would be performing a typical congressional attribution. However, a sound argument to counteract this critique lies in the fact that the Court can fill this partial omission only if the judicially-added content is clearly predefined by the Constitution. For example, if an arbitrary statute grants a series of rights only to men (implicitly excluding women), the Court can uphold the rule under the condition that it shall be interpreted as including also women. Thus, the Court wouldn’t be engaging in full-fledged legislative activity, but rather it would be just applying, to the challenged statute, a constitutional provision (i.e. equality). In one word: it is not the judge the one who is crafting legislative rules, but it is the Constitution (a higher rule) that imposes this interpretive addition to the rule.[14]

Someone might contend that this same reasoning might be applied to the judicial addition of interpretations to constitutional amendments. Nevertheless, and as I mentioned before, if an amendment is hierarchically equivalent to the Constitution, the adhered judicial interpretations cannot stem from the Constitution, but from somewhere else. As it occurred in a previous decision,[15] perhaps they may come from the very basic structure of the Constitution. Recall that I claimed that a possible implication of the Colombian Court’s case law is that any limit to the enactment of constitutional amendment is logically a supraconstitutional limit. Thus, when the Court identifies the implied essential features of the Colombian Constitution (which can invalidate an amendment), it is building supraconstitutional rules. These rules, in turn, are useful not only to assess the constitutionality of an amendment, but also to provide hermeneutical leverage to ‘save’ it from its annulment by means of the incorporation of certain interpretations. Ultimately, the Court would be in charge of producing supraconstitutional norms (i.e. the essential pillars of the constitutional structure) as well as constitutional norms (the interpretations added to the constitutional amendment’s text). Following R. Albert[16] and Robert Schapiro,[17] there would be, then, a double supercountermajoritarian difficulty: the Court not merely reviews and eventually strikes down amendments, but it also completes and corrects the work of the delegated constituent power.

III. The Marks Rule Travels to Colombia? A Possible Plurality Opinion

Finally, the Court announced in the press release that its decision was a unanimous one: there was not a single dissenting opinion. However, it is striking to notice that eight out of nine Justices announced that they will file concurring opinions. Unfortunately, the reasons provided in the press release are not enough to identify whether the holding of this case will be endorsed by, at least, five members of the Court. This is a particularly crucial issue because considering that the Court added in its reasoning section a series of interpretations to uphold the amendment, we will have to wait to see if they are sustained by the Court’s majority. If this were not the case we would be, for the first time in the Court’s history, before a plurality opinion and, eventually, the Court would have to build a rule to clarify what judges should do under these circumstances.

IV. Conclusion

Far from trying to answer these complex questions, I have tried to raise a number of inquiries and some possible implications from the vantage point of democratic and constitutional theory, and in light of the Constitutional Court’s case law.

Since the Constitution is the ultimate positive rule in a state, the questions concerning constitutional amendments are metaconstitutional issues. Therefore, courts that review amendments based on implicit limitations have to rely on material, unwritten and maybe supraconstitutional rules that may amount to one of the most extreme forms of judicial activism. So, caution is advised.

Suggested Citation: Vicente F. Benítez R., Judicial Review of Peace Amendments in Colombia: Towards Supraconstitutional Rules and Plurality Opinions?, Int’l J. Const. L. Blog, Oct. 31, 2017, at: http://www.iconnectblog.com/2017/10/judicial-review-of-peace-amendments-in-colombia-towards-supraconstitutional-rules-and-plurality-opinions


[1] Two complete accounts in English about the Colombian substitution doctrine are offered by Carlos Bernal-Pulido, “Unconstitutional constitutional amendments in the case study of Colombia: An analysis of the justification and meaning of the constitutional replacement doctrine,” 11 International Journal of Constitutional Law 339 (2013); and Gonzalo Ramirez-Cleves. The Unconstitutionality of Constitutional Amendments in Colombia: The Tension Between Majoritarian Democracy and Constitutional Democracy. Democratizing constitutional law. Springer, 2016.  

[2] Available at: http://www.corteconstitucional.gov.co/comunicados/No.%2051%20comunicado%2011%20de%20octubre%20de%202017.pdf [in Spanish].

[3] This is the so-called ‘fast track’ amendment. See Acto Legislativo 1/2016.

[4] See Acto Legislativo 2/2017. Non-official translation.

[5] Id.

[6] Cf. Alf Ross, On Self-Reference and a Puzzle in Constitutional Law. 78 Mind 1 (Jan. 1969).

[7] See Leopoldo Uprimny, “Puede una reforma de la constitución ser inconstitucional?,” Revista de la Academia Colombiana de Jurisprudencia 174 (1957).

[8] Vicente F. Benítez R. Constitución Popular, no judicial. Temis, Bogota, 2014.

[9] See, for example, decisions C-551/2003 and C-1200/2003.

[10] See, for instance, decision C-574/2011.

[11] An interesting proposal to overcome the problems derived from the possibility of amending the amendment rules can be found in Richard Albert, “Amending constitutional amendment rules,” 13 International Journal of Constitutional Law 655 (2015).

[12] See decision C-579/2013.

[13] I have explored this topic here: Vicente F. Benítez R. and J. González. Cuando las constituciones callan: Omisiones constitucionales relativas y la sentencia C-579 de 2013. Anuario de Derecho Constitucional Latinoamericano. Konrad Adenauer Stiftung, Bogota, 2015. Available at: https://revistas-colaboracion.juridicas.unam.mx/index.php/anuario-derecho-constitucional/article/view/4139/3585

[14] This is what Vezio Crisafulli called ‘sentenze a rime obbligate’. See Vezio Crisafulli, Lezioni di diritto costituzionale. Vol. 2. CEDAM, Padua, 1984.

[15] See footnote 12.

[16] Cf. Richard Albert, “Nonconstitutional Amendments,” 22 Canadian Journal of Law and Jurisprudence 5 (2009).

[17] See Robert Schapiro, “The Legislative Injunction: A Remedy for Unconstitutional Legislative Inaction,” 99 Yale Law Journal 231 (1989).

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Published on October 31, 2017
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