WEB SITE OF TURKISH CONSTITUTIONAL LAW
Kemal
Gözler,
Judicial
Review of Constitutional Amendments:A Comparative Study,
Bursa,
Ekin Press, 2008, XII+126
p.[http://www.anayasa.gen.tr/jrca-1.htm]
(Dec. 20, 2008)
For PDF version, click here.
Kemal Gözler
Uludað University, Turkey
Judicial Review of Constitutional Amendments
A
Comparative Study
Ekin Press
Bursa - 2008
Copyright © 2008
Kemal Gözler
All Rights Reserved
Published by
Ekin Press
Burç Pasajý no. 27
Altýparmak, Bursa - Turkey
Telephone: 90.224.223 0437; Fax: 90.224.223 4112
Email: info@ekinyayinevi.com
First published in 2008
Printed in Turkey by
Þefik Matbaasý, Marmara Sanayi Sitesi, M Blok, No.291
Ýkitelli, Ýstanbul - Turkey
Open Access
An online version of this book is available at http://www.anayasa.gen.tr/jrca.htm
Library of Congress Cataloging in Publication Data
Gözler, Kemal, 1966-
Judicial review of constitutional amendments: a
comparative study /
Kemal Gözler
p.; cm.
Includes bibliographical references and index.
ISBN 978-9944-141-73-4
1. Judicial review. 2. Constitutional amendments.
3. Constitutional courts. 4. Comparative law
K.3175.G69 2008
Dewey Class Number
347.012 [342.712]
For Table of Contents and Introduction click here.
To answer the question of whether the constitutional courts have competence to rule on the constitutionality of constitutional amendments in a given country, one should examine this country’s constitution in the first place. If there is a provision in the constitution regarding this competence, this question will be answered in accordance with this provision. Nonetheless, a constitution may be silent on this point. One must, therefore, distinguish between countries where there are and there are not constitutional provisions concerning the competence of the constitutional court to review constitutional amendments.
If there is a provision in a country’s constitution relating to the competence of constitutional court for the review of constitutional amendments, the question of whether the judicial review of the constitutional amendment is or is not possible may be answered according to this provision. If the constitution provides that the constitutional court can review the constitutionality of constitutional amendments, such a review would be possible. On the other hand, if the constitution expressly prohibits the judicial review of constitutional amendments, it would not be possible. The first hypothesis is illustrated by the 1961 and 1982 Turkish, 1980 Chilean Constitution and 1991 Romanian Constitution. The second hypothesis is illustrated by the 1950 Indian Constitution, as amended in 1976.
The 1961 and 1982 Turkish Constitutions, 1980 Chilean Constitution and 1991 Romanian Constitutions expressly vest the constitutional court with the competence to review the constitutionality of constitutional amendments.
Article 147 of the 1961 Turkish Constitution, as amended in 1971, stipulated that the Turkish Constitutional Court can review the formal regularity of constitutional amendments.[1] From 1971 to 1980, the Turkish Constitutional Court rendered five decisions reviewing the constitutionality of constitutional amendments. These decisions are discussed below.[2]
The Turkish Constitution of 1982 also specifically regulates the judicial review of constitutional amendments. Article 148(1) of the Constitution explicitly empowers the Constitutional Court to review the constitutionality of constitutional amendments; however, it limits this review to form.[3] Under the 1982 Constitution, the Turkish Constitutional Court has only had one occasion to rule on the constitutionality of constitutional amendments under the 1982 Constitution.[4]
Under Article 82(2) of the 1980 Chilean Constitution, the Chilean Constitutional Court has the power “to resolve on questions regarding constitutionality which might arise during the processing… of constitutional amendment… submitted to the approval of Congress.”[5] Therefore in Chile, the Constitutional Court can review the constitutionality of constitutional amendments submitted to Congress for approval, during the process. The author is unaware of any decisions of the Chilean Constitutional Court concerning the constitutionality of constitutional amendments.
The Constitution of Romania established a preventive (a priori) review of the constitutionality of constitutional amendments. Article 144(a), in its original form in the Constitution of 1991, (now Article 146(a) of the 2003 version of the Constitution[6]) empowers the Constitutional Court “to adjudicate… as ex officio, on initiatives to revise the Constitution.” Before Parliament begins the procedure to enact a constitutional amendment, the project of the constitutional amendment must be submitted to the Constitutional Court, which will rule on its constitutionality within 10 days. The initiative to revise the Constitution may be deposed to the Parliament only with the decision of the Constitutional Court.[7]
The Romanian Constitutional Court reviewed ex officio the constitutionality of the initiatives for the revision of the Constitution in three cases in 1996, 2000, and 2003.[8] The first two initiatives were halted from continuing their legislative course because they failed to meet the constitutional requirements prescribed for a revision of the Constitution.[9] The constitutionality of the third legislative proposal was examined by the Constitutional Court in 2003. The Constitutional Court, in its decision No. 148, of April 16, 2003 declared certain provisions of this proposal unconstitutional on the ground that they transcended the limits on constitutional amendments as provided by Article 148 (2)[10] of the 1991 Romanian Constitution.[11] Later, Parliament debated and approved the text of the proposal which was modified according to decision of the Constitutional Court.[12] But after Parliament’s approval, the constitutionality of the constitutional amendment was challenged before the Constitutional Court, by way of an objection of unconstitutionality. The Court, in the Decision No. 686 of September 30, 2003 rejected this objection on the ground that it does not have competence to review the law of constitutional amendments after the approval by the Parliament because the Constitutional Court has jurisdiction to exercise only a preventive (a priori) review on the initiative for constitutional amendments.[13]
Concerning Romania, it can be concluded hat the judicial review of the constitutional amendments is possible, but only in a framework of an a priori review of the initiatives for constitutional amendments; not an a posteriori review of the enacted constitutional amendments.
If the constitution expressly prohibits the judicial review of constitutional amendments, this review, of course, would not be possible. This hypothesis is illustrated by the 1950 Indian Constitution as amended in 1976.
Clause 4 of Article 368 of the 1950 Indian Constitution, which was added by the 42nd Amendment in 1976, stipulated that “no amendment of this Constitution (including the provisions of Part III) made or purporting to have been made under this article… shall be called in question in any court on any ground.”[14] Therefore in India, as of 1976, the Supreme Court of India was precluded from reviewing the constitutionality of constitutional amendments. There is no doubt on this issue because clause 4 of Article 368 of the Indian Constitution explicitly prohibits the judicial review of constitutional amendments. Moreover, clause 5 of the same Article states that “there shall be no limitation whatever on the constituent power of Parliament to amend by way of addition, variation or repeal the provisions of this Constitution under this Article.” This clause also provides that constitutional amendments cannot be judicially reviewed because the Indian Constitution does not impose any limitations on the power of the Indian Parliament to amend the constitution.
In the Minerva Mills Ltd. v. Union of India case, however, the Supreme Court of India reviewed the 42nd Amendment of the Indian Constitution and declared that this amendment was unconstitutional on the ground that it violated the “basic structure of the Constitution.”[15]
The opinion of the Court in Minerva Mills is highly debatable because the Supreme Court of India does not have jurisdiction to rule on the constitutionality of constitutional amendments, and it is clear that the Court used a competence it does not possess. The Supreme Court usurped the power to amend the Constitution as this power was solely conferred to Parliament by way of Article 368 of the Constitution. Additionally, as it will be explained below,[16] the concept “basic structure of the Constitution” does not have a textual basis since it is not defined in the Constitution; thus it is a vague concept which may be defined differently as illustrated in the Kesavananda Bharati case which will be reviewed below.[17]
As noted above, a constitution may be silent as to the judicial review of the constitutionality of constitutional amendments. Apart from the Turkish, Chilean, Indian and Romanian Constitutions, the other constitutions researched for this article did not contain a provision providing for the review of the constitutionality of constitutional amendments. For instance, the Austrian Constitution of 1920, the French Constitution of 1958, the German Basic Law of 1949, the Hungarian Constitution of 1949, the Indian Constitution of 1950 (before 1976), the Irish Constitution of 1937, the Slovenian Constitution of 1991, the Turkish Constitution of 1961 (before 1971), and the United States Constitution does not regulate the issue of whether, in these countries, constitutional courts or supreme courts have the jurisdiction to review the constitutionality of constitutional amendments.
When the constitution is silent on the question of the judicial review of constitutional amendments, in order to answer this question, it is necessary to make a division between the American and European models of judicial review.[18]
Under the American model of judicial review, all courts have jurisdiction to examine the constitutionality of legal acts and norms in the course of deciding legal cases and controversies. In countries where there is an American model of judicial review, the jurisdiction of the courts, and in the last resort the supreme court, to review the constitutionality of constitutional amendments can be easily established, because in a legal case before the courts and the supreme court, the constitutionality of a constitutional amendment can be challenged by the parties claiming that this amendment is enacted contrary to the procedure of constitutional amendment, or that its substance violates the limitations imposing on constitutional amendments. In such a case, the fact that the courts or a supreme court examine this claim means that they review the constitutionality of this amendment. Therefore, under the American model of judicial review, the constitutionality of constitutional amendments may be reviewed by the courts, even if the constitution does not expressly vest the courts with this competence because, under such a model, the courts do not need to receive a special competence for this; under this system, every court has the power to examine the admissibility of the grounds invoked by the parties in the course of legal proceedings.
Indeed, in the countries following the American model of judicial review, the constitutionality of constitutional amendments was examined by courts in several cases. For example, in the cases of Hollingsworth v. Virginia, National Prohibition, Dillon v. Gloss and United States v. Sprague before the United States Supreme Court;[19] in the cases of State (Ryan) v. Lennon and Abortion Information before the Supreme Court of Ireland;[20] and in the cases of Golaknath v. State of Punjab, Kesavananda Bharati v. State of Kerala, Indira Nehru Gandhi v. Raj Narain, Minerva Mills Ltd. v. Union of India, and Waman Rao v. Union of India before the Supreme Court of India,[21] it is claimed that different constitutional amendments are unconstitutional. The United States and Irish Supreme Courts rejected these claims and upheld the validity of attacked constitutional amendments, but the Indian Supreme Court, in some cases, accepted these claims, and declared unconstitutional of some constitutional amendments. The acceptance or rejection of these claims implies a judicial review of constitutional amendments. These cases will be examined later.[22]
Under the European model of judicial review, only a specialized court (called generally “constitutional court”) has jurisdiction to adjudicate the constitutionality of laws. In the countries where there is a European model of judicial review, the competence of the constitutional courts to review the constitutionality of constitutional amendments must explicitly emanate from a constitutional provision. In other words, even if the constitution does not expressly prohibit the judicial review of constitutional amendments, this review is not possible if there is not a constitutional provision expressly vesting the constitutional court with the competence to review constitutional amendments, because under the European model, being a specialized court, the constitutional court does not have a “general jurisdiction”, but only a “limited and special jurisdiction.” In other words, under this model, constitutional courts do not have jurisdiction to review all legal norms and acts,[23] but only those for which the constitution explicitly give them the competence to review. Consequently, under this model, in order to have competence, a constitutional court should be expressly vested with this competence by the constitution. If the constitution is silent on the constitutional court’s competence to review constitutional amendments, it means that the constitutional court does not have competence to rule on the constitutionality of the constitutional amendments.
In order to support this conclusion, the maxim Expressio unius est exclusio alterius[24] may be invoked. According to this canon of interpretation, the fact that the constitutional provision determining the competence of the constitutional court expressly enumerated legal acts, such as laws, decrees having force of law, which are subjected to the review of constitutional court means that the legal acts, such as constitutional amendments, which are not enumerated in this constitutional provision are not subjected to this review. If the constituent power wanted to vest the constitutional court with the competence to review the constitutionality, not only of laws, but also constitutional amendments, it could do it expressly. The fact that it does not means that it did not want to vest the constitutional court with such competence.
This conclusion is confirmed by the case-law of the French Constitutional Council and the Hungarian and Slovenian Constitutional Courts.
The French Constitutional Council, in its decision of November 6, 1962, No. 62-20 DC, ruled that it did not have the jurisdiction to review the constitutional amendments adopted by way of referendum.[25] Likewise, the French Constitutional Council, in a decision dated March 26, 2003, No. 2003-469 DC, declared that it did not have the jurisdiction to decide on the constitutional amendments adopted by way of Parliament.[26] In the last case, several articles in the 1958 Constitution were amended by the Constitutional Law on Decentralized Organization of the Republic.[27] This Constitutional Law was referred to the Constitutional Council by more than 60 senators on the ground that it was contrary to the Constitution with respect to its form and substance.[28]
After noting that its jurisdiction is strictly defined by the Constitution and it is unable to rule on cases, other than those expressly specified by the provisions of Constitution, the Constitutional Council ruled that
Article 61 of the Constitution vests the Constitutional Council with the power to review the constitutionality of institutional acts and ordinary laws when they are referred to in the Constitutional Council under the conditions laid down by this Article. The Constitutional Council did not receive, neither from Article 61, Article 89, nor from another Article in the Constitution, the jurisdiction to rule on a revision of the Constitution.[29]
As noted by the Constitutional Council, in Article 61, or other articles of the Constitution, there is not a provision empowering the Constitutional Council to review the “constitutional amendments”, or more precisely “constitutional laws” (lois constitutionnelles). Article 61 vests Constitutional Council with the authority to review the constitutionality of “laws” (lois), but this Article does not even mention the term “constitutional laws” (lois constitutionnelles). Because the Constitutional Council based its conclusion on a strict interpretation of Article 61 of the 1958 Constitution, it is easy to understand why the Constitutional Council reached the conclusion that it did not have proper jurisdiction to rule on constitutional amendments.
The constitutionality of the Constitutional Amendment adopted on October 14, 1997 was challenged in a case No. 1260/B/1997 before the Hungarian Constitutional Court. The petitioner argued that this Amendment is unconstitutional because it violated the principles of sovereignty and certainty of law as protected by Article 2 of the Hungarian Constitution. The Constitutional Court first examined the question of whether it has jurisdiction to rule on constitutional amendments. After having observed that Article 32/A of the Hungarian Constitution[30] and Article 1 of Act XXXII of 1989[31] empower the Constitutional Court to review the constitutionality of laws, and not constitutional amendments, the Hungarian Court, in its decision of February 9, 1998, declared that the scope of its jurisdiction did not extend to the review of the constitutionality of laws amending the Constitution.[32]
The Slovenian Constitutional Court, in a decision dated April 11, 1996, No. U-I-332/94 ruled that the provisions of the nature of constitutional norm did not fall within its jurisdiction. In that decision, the Slovenian Constitutional Court narrowly interpreted the word “statutes” in the phrase “conformity of statutes with this Constitution”, found in Article 160 of the Constitution determining its competence, and declared that this word did contain norms of a constitutional nature.[33]
The Irish system of constitutional review is a “mixed model.” In Ireland, constitutional review is exercised by the Supreme Court and the High Court, and not a specialized constitutional court; however, concerning the competence of constitutional review, the Irish system is similar to the European model, rather than the American model because this competence is accorded to the Supreme Court and the High Court by the Constitution.[34] In other words, the competence of these courts emanates from the text of the constitution; therefore, these courts do not have a “general jurisdiction”, but only a “limited and special jurisdiction.” For this reason, in Ireland, the judicial review of constitutional amendments is not possible because the constitution does not expressly grant this power to the Supreme Court nor to the High Court. This conclusion is confirmed by the Irish Supreme Court in the Riordan v. An Taoiseach case in which the Court ruled that it could not review the constitutionality of a constitutional amendment.[35] In this case, the constitutionality of the Nineteenth Amendment was challenged. This Amendment was approved on May 22, 1998 by referendum and signed and promulgated by the President of Republic on June 3, 1998. Mr. Denis Riordan requested the Supreme Court to declare that “the 19th Amendment of the Constitution Act, 1998 is repugnant to the Constitution and is therefore unconstitutional, null, void and inoperative.” The Supreme Court of Ireland rejected this request on the ground that a constitutional amendment
is different in kind from ordinary legislation. Whereas ordinary legislation requires the participation of the President and the two houses of Parliament, a constitutional amendment requires the co-operation of the President, the two houses of Parliament and the people…. A proposed amendment to the Constitution will usually be designed to change something in the Constitution and will therefore, until enacted, be inconsistent with the existing text of the Constitution, but, once approved by the people under Article 46 and promulgated by the President as law, it will form part of the Constitution and cannot be attacked as unconstitutional. When the President promulgates a Bill to amend the Constitution duly passed by the people in accordance with Article 46[36] “as a law” within the meaning of Article 46 s.5[37] she is promulgating it as part of the basic law or “bunreacht” because it is an amendment to the Constitution duly approved by the people. Such “law” is in a totally different position from the “law” referred to in Article 15 s.4[38] of the Constitution which refers only to a law “enacted by the Oireachtas.”[39]
It can be observed that the Supreme Court of Ireland does not consider itself competent to review the constitutionality of constitutional amendments because, according to the Court, the constitutional amendments are different from ordinary laws which are subject to its jurisdiction.
As concluded above,[40] under the European model, the judicial review of constitutional amendments is not possible if there is not an express constitutional provision empowering the constitutional court to rule on constitutional amendments. But under such system, there is certainly a constitutional provision vesting the constitutional court with the competence to review the constitutionality of laws.[41] Can the competence of the constitutional court to review constitutional amendments emanate from this provision? This question can be answered in the affirmative, if constitutional amendments are deemed to be laws. If constitutional amendments can be included in the word “law”, they can be reviewed by constitutional courts without any need of additional competence because constitutional courts already have competence to review the constitutionality of laws. But, can constitutional amendments fall within the meaning of the word “law” used in constitutional provisions determining the competence of the constitutional courts?
In order to support the idea that constitutional amendments are deemed to be law, the following arguments can be advanced: First, constitutional amendments are indisputably laws with respect to their form as evidenced by the fact that, in many countries, constitutional amendments take the form of laws. As such, they are referred to as laws, as well as promulgated under the title of laws in the official gazettes. To illustrate that constitutional amendments are laws, in many countries, constitutional amendments are called “law on the amendment to the constitution”, “law amending the constitution”, or “constitutional law.” Furthermore, some constitutions specify that a constitutional amendment is made by a “law.” For example, Article 79(1) of the 1949 German Basic Law states that “this Basic Law may be amended only by a law expressly modifying or supplementing its text.”[42] If constitutional amendments, as their names indicate, were “laws”, the constitutional courts could review their constitutionality, even in the absence of a special competence with regard to those amendments.
But the idea that the constitutional amendments can be deemed to be laws presents several weaknesses. First although laws of constitutional amendments and ordinary laws are similar to each other with respect to the procedure and the form in which they are enacted; their legal force is, nonetheless, different because constitutional amendments have a higher rank in the hierarchy of legal norms. Secondly, the validity of the opinion stating that the constitutional amendments can be included in the term “law”, and consequently, can be reviewed by constitutional courts, depends on the question of whether the term “law” can be broadly interpreted. The term “law” in a constitutional provision determining the competence of constitutional courts cannot be broadly interpreted, since, as noted above, under the European model of judicial review, the constitutional courts do not have a “general jurisdiction”, but only a “limited and special jurisdiction.” In other words, for constitutional courts, not having jurisdiction is the general rule, while having it is the exception. As a result, constitutional provisions vesting constitutional courts with the jurisdiction to review the constitutionality of legal norms are of an exceptional nature, and therefore they should be interpreted narrowly due to the principle of exceptio est strictissimae interpretationis.[43]
Despite these weaknesses, the German, Austrian and Turkish Constitutional Courts have adopted a positive answer to the question of whether constitutional amendments can be deemed to be “laws.” These Courts declared that they have jurisdiction with regard to constitutional amendments, and thus have reviewed their conformity with the constitution.
The competence of German Constitutional Court is determined by Article 93 of the 1949 Basic Law. In this Article, there is not a provision vesting the Constitutional Court with the jurisdiction to review the “constitutional amendments”, and the term “constitutional amendment” is not even mentioned in that Article. Article 93(1)(2) empowers the Constitutional Court to rule on “the formal and material compatibility of federal or land legislation with this Basic Law.”[44] However, as analyzed below,[45] the German Constitutional Court, in its decisions of December 15, 1970, April 23, 1991, April 18, 1996, May 14, 1996, and March 3, 2004, reviewed the constitutionality of constitutional amendments. In those decisions, even if the question of whether the constitutional amendments can be included in the term “federal legislation” (Bundesrecht) was not separately discussed, it is plausible to conclude that the Constitutional Court has implicitly interpreted the term “federal legislation” to include not only ordinary federal laws, but also the “law expressly modifying or supplementing the text of Basic Law” (i.e., constitutional amendments), because, if the Constitutional Court would have interpreted the term “federal legislation” in another manner, it would have declared itself incompetent to review of the constitutionality of constitutional amendments.
The same observation is valid also for the Austrian Constitutional Court. Article 140(1) of the Austrian Constitution[46] empowers to the Constitutional Court to rule on the constitutionality of “a federal or land law” (eines Bundes- oder Landesgesetzes). Although this Article does not mention the terms “constitutional laws” (Verfassungsgesetz) or “constitutional provisions” (Verfassungsbestimmung), the Austrian Constitutional Court has interpreted the term “federal law” (Bundesgesetzes) to include not only “ordinary laws”, but also “constitutional laws” (Verfassungsgesetz) and “constitutional provisions” (Verfassungsbestimmung). If this were not the case, the Constitutional Court could not have reviewed the constitutionality of constitutional amendments in its decisions dated December 12, 1952, June 23, 1988, September 29, 1988 and March 10, 2001. These decisions will be studied below.[47]
The 1961 Turkish Constitution, before 1971 amendment, does not include a specific provision relating to the review of the constitutionality of constitutional amendments. Between 1961 and 1971, Article 147 of the 1961 Constitution stipulated that “the Constitutional Court shall review the constitutionality of laws.”[48] The Turkish Constitutional Court, nonetheless, in its decisions of June 16, 1970, No. 1970/31[49] and April 3, 1971, No.1971/37,[50] declared itself competent to review the constitutionality of constitutional amendments because, according to the Constitutional Court, “laws of constitutional amendment” are also “laws” which are subjected to its jurisdiction.[51]
One can conclude that the term “law” does not include the “laws of constitutional amendment”, and consequently, that the decisions of the German, Austrian and Turkish Constitutional Courts are ill-founded. The decisions of constitutional courts, however, are binding, and consequently, the constitutional court’s interpretation of the term “law” is valid regardless of whether there are individuals who are of a different opinion. Hence, if a constitutional court interprets the term “law” as including “law of constitutional amendment”, and consequently declares that it has the jurisdiction to rule on the constitutionality of constitutional amendments, the validity of this decision cannot be challenged. This decision can be criticized, but it is, nonetheless, valid and produces legal consequences. To illustrate, the United States Supreme Court, in the famous case Marbury v. Madison, declared that it had the jurisdiction to review the constitutionality of laws,[52] even though the United States Constitution does not explicitly provide that the U.S. Supreme Court shall have the authority to review the constitutionality of laws. Thus, for two centuries, the U.S. Supreme Court has reviewed the constitutionality of laws, and in some instances, declared some of them unconstitutional. Many lawyers and scholars have severely criticized some of the U.S. Supreme Court’s decisions, but the Court continues to review the constitutionality of laws. The same could be said with respect to the review of the constitutionality of constitutional amendments. Even if the constitutional courts did not receive special competence from the constitution, they could declare themselves competent to review the constitutionality of constitutional amendments, and although its decisions could be criticized, they would be valid.
* * *
Scope of Review. – As explained above, the judicial review of constitutionality of constitutional amendments is possible in some countries such as Austria, Germany, India, Romania, Turkey and the United States. Now, in these countries, the scope of the judicial review of constitutional amendments must be determined. Can constitutional courts review the constitutionality of constitutional amendments with respect to both form and substance? It is suitable to examine this question by sub-dividing it in two: Can constitutional courts review the formal regularity of constitutional amendments, and constitutional courts review the substance of constitutional amendments? These two questions will be studied in the following chapters of this monograph.
For Chapter 2, click here.
For Chapter 3, Conclusion, Bibliography and Index, click here.
[1] Anayasa [Constitution] art. 147(1) (1961, amended 1971 (Turkey). For an the English translation of the 1961 Turkish Constitution, as amended in 1971, see The Turkish Constitution As Amended (Mustafa Gerçeker, Erhan Yaþar and Orhan Tung trans., Directorate General of Press and Information 1978), available at http://www.anayasa.gen.tr/1961constitution-amended. pdf (last visited Apr. 3, 2006).
[2] See infra pp. 42-47.
[3] Anayasa [Constitution] art. 148(2) (1982) (Turkey). An English translation of the 1982 Turkish Constitution is available at http://www.byegm. gov.tr/mevzuat/anayasa/anayasa-ing.htm (last visited Mar. 5, 2007).
[4] See infra pp. 47-48.
[5] Constitución [Const.] [Constitution] art. 82(2) (1980) (Chile). An English translation of Chilean Constitution of 1982 is available at http://confinder.richmond.edu/admin/docs/Chile.pdf (last updated Apr. 19, 2005).
[6] The Constitution of Romania of 1991 was amended and republished, in 2003, with updated denominations and a new number sequence of the text. For the English translation of both texts, see CODICES database of Venice Commission, at http://codices.coe.int>; select Constitutions > English > Europe > Romania (last visited Mar. 23, 2007).
[7] Gheorge Iancu, Doina Suliman and Monica Ionescu, Rapport de la Cour constitutionnelle de Roumanie [Report of the Constitutional Court of Romania], 2ème Congrès de l’ACCPUF [Proceedings of the 2nd Symposium of ACCPUF], Libreville, September 14-15, 2000), http://www.accpuf.org/ congres2/II-RAPPO/rapport_rom.pdf (last visited Mar. 6, 2007).
[8] Nicalae Popa, The Constitutional Court of Romania, Twelve Years of Activity: 1992-2004–Evolutions over the Last Three Years, 7 The Constitutional Court’s Bulletin (May 2004), available at http://www.ccr.ro/default.aspx?page=publications/buletin/7/popa (last visited Mar. 6, 2007).
[9] Id.
[10] Art. 148(2) stipulates as follows: “Likewise, no revision shall be made if it results in the suppression of the citizens’ fundamental rights and freedoms, or the safeguards thereof” (Const. art.148(2) (2001) (Romania) See supra note 6)
[11] Romanian Constitutional Court, Decision No. 148 of April 16, 2003, on the issue of constitutionality of the legislative proposal for the revision of the Constitution of Romania, Official Gazette of Romania, May 12, 2003, No. 317. The English translation of this decision is available at the website of the Romanian Constitutional Court at http://www.ccr.ro/decisions/pdf/en/ 2003/D148_03.pdf (last visited Mar. 4, 2007).
[12] Id.
[13] Popa, supra note 9.
[14] India Const. art. 368 § 4: amended by the Constitution (Forty-second Amendment) Act, 1976, available at http://lawmin.nic.in/coi.htm (last visited Mar. 18, 2007).
[15] Minerva Mills Ltd. v. Union of India, A.I.R. 1980 S.C., 1789, 1981, available at http://judis.nic.in/supremecourt/qrydisp.asp?tfnm=4488 (last visited Mar. 7, 2007). For comments on this judgment, see Anuranjan Sethi, Basic Structure Doctrine: Some Reflections, http://ssrn.com/abstract=835165, p. 11-13 (last visited Mar. 4, 2007); Rory O’Connell, Guardians of the Constitution: Unconstitutional Constitutional Norms, 4 J. Civil Liberties 48, 72-73 (1999); S. P. Sathe, Judicial Activism in India 87 (Oxford University Press 2002).
[16] See infra pp. 93-95.
[17] See infra pp. 91-93.
[18] For a comparison on the differences of these two models of judicial review, see Louis Favoreu, Constitutional Review in Europe, in Constitutionalism and Rights: The Influence of the United States Constitution Abroad 38 at 40-42 (Louis Henkin and Albert J. Rosenthal eds., Columbia University Press 1990). The same division is made by Mauro Cappelletti in terms of “centralized” and “decentralized judicial review.” See Mauro Cappelletti, Judicial Review in Comparative Perspective, 58 Cal. L. Rev. 1017 (1970).
[19] See infra pp. 28-34.
[20] See infra pp. 82-83.
[21] See infra pp. 88-94.
[22] See infra pp. 28-34, 78-97.
[23] For example, constitutions, laws, codes, statutes, acts, bills, edicts, legislation, enactments, treaties, conventions, agreements, charters, pacts, decrees, decrees having force of law, ordinances, bylaws, regulations, rules, rulings, decisions, verdicts, orders, directives, circulars, measures, principles, guidelines, instructions, standards, statements, announcements, proclamations, pronouncements, declarations, settlements, resolutions, etc.
[24] Express mention of one thing implies the exclusion of another.
[25] Conseil Constitutionnel [CC] (Constitutional Council) decision no. 1962-20DC, November 6, 1962, Recueil des décisions du Conseil constitutionnel [hereinafter Rec.] [Constitutional Council Reports] 27 (1962). The original French text is available at http://www.conseil-constitu-tionnel.fr/decision/1962/6220dc.htm (last visited Mar. 5, 2007). An English translation can be found in Comparative Constitutionalism: Cases and Materials 97-98 (Norman Dorsen et al., eds., Thomson West 2003).
[26] Conseil Constitutionnel [CC] (Constitutional Council) decision no. 2003-469 DC, Mar. 26, 2003, Recueil des décisions du Conseil constitutionnel [Rec.] [Constitutional Council Reports] 293 (2003). The original French text is available at http://www.conseil-constitutionnel.fr/ decision/2003/2003469/2003469dc.htm (last visited Mar. 5, 2007). An English précis of this decision is available in CODICES database of Venice Commission, at http://codices.coe.int (FRA-2003-1-004).
[27] Law No. 2003/276 of March 28, 2003, Journal officiel de la République française [J.O.] [Official Gazette of the French Republic], Mar. 29, 2003, p. 5570. The original French text is available at http://www. legifrance.gouv.fr/WAspad/UnTexteDeJorf?numjo=JUSX0200146L (last visited Feb. 20, 2007). For an English analysis of this Constitutional Amendment, see Xavier Philippe, France: The Amendment of the French Constitution "on the Decentralized Organization of the Republic," 2 Int’l J. Const. L. (I.CON) 691 (2004).
[28] See the original French text of the grounds of applicants, available at http://www.conseil-constitutionnel.fr/decision/2003/2003469/saisine.htm (last visited Feb. 21, 2007).
[29] Conseil Constitutionnel [CC] (Constitutional Council) decision No. 2003-469DC, Mar. 26, 2003, supra note 27 (The quotation above is the author’s own translation from the original French text).
[30] Constitution of the Republic of Hungary (Act XX of 1949 as revised and restated by Act XXXI of 1989), Art. 32/A. An English translation of Hungarian Constitution is available in CODICES database of Venice Commission, at http://codices.coe.int; select Constitutions > English > Europe > Hungary (last visited Mar. 4 2007).
[31] Act No. XXXII of 1989 on Constitutional Court, Art. 1. An English translation of this law is available in CODICES database of Venice Commission, at http://codices.coe.int; select Laws > English > Europe > Hungary (last visited Mar. 5, 2007).
[32] Hungarian Constitutional Court, Decision of Feb. 9, 1998, No. 1260/B/1997, Alkotmánybírósági Közlöny [Official Digest]), 2/1998. An English précis of this decision is available in CODICES database of Venice Commission, at <http://codices.coe.int> (HUN-1998-1-001) (last visited Apr. 9, 2007).
[33] The English translation of this decision is available at the official web site of the Constitutional Court of Slovenian Republic, at http://odlocitve.us-rs.si/usrs/us-odl.nsf/o/8EBF190D9E2129ECC12571720029D40D> (last visited Mar. 6, 2007).
[34] Irish Constitution (Bunreacht Na Héireann) [Ir. Const.,] 1937, art. 34, available at http://www.taoiseach.gov.ie/index.asp?docID=262 (last visited Mar. 6, 2007).
[35] Riordan v. An Taoiseach [1999] IESC 1 (May 20, 1999, Appeal No. 202/98) (Ir.), available at http://www.bailii.org/ie/cases/IESC/1999/1.html (last visited Mar. 6, 2007).
[36] Article 46 of the 1937 Irish Constitution regulates the procedure of the constitutional amendment.
[37] Section 5 of the Article 46 stipulates as follows: “A Bill containing a proposal for the amendment of this Constitution shall be signed by the President forthwith upon his being satisfied that the provisions of this Article have been complied with in respect thereof and that such proposal has been duly approved by the people in accordance with the provisions of section 1 of Article 47 of this Constitution and shall be duly promulgated by the President as a law” (Ir. Const., 1937, art. 46 § 5).
[38] Section 4 of Art. 15 of the 1937 Irish Constitution states as follows: “1° The Oireachtas shall not enact any law which is in any respect repugnant to this Constitution or any provision thereof. 2° Every law enacted by the Oireachtas which is in any respect repugnant to this Constitution or to any provision thereof, shall, but to the extent only of such repugnancy, be invalid (Ir. Const., 1937, art. 15 § 4).
[39] Riordan v. An Taoiseach [1999] IESC 1, available at http://www. bailii.org/ie/cases/IESC/1999/1.html (last visited Mar. 6, 2007).
[40] See supra pp. 12-18.
[41] For example, art. 93 of the German Basic Law, art. 140(1) of the Austrian Constitution, and art. 147 of the 1961 Turkish Constitution.
[42] Grundgesetz [GG] [Constitution] art. 79(1) (1949) (F.R.G). An English translation of the 1949 German Basic Law [Grundgesetz für die Bundesrepublik Deutschland] is available in CODICES database of Venice Commission, at http://codices.coe.int/; select Constitutions > English > Europe > Germany (last visited Mar. 20, 2007).
[43] Exceptions must be interpreted in the strictest manner.
[44] Grundgesetz [GG] [Constitution] art. 93(1)(2) (1949) (F.R.G). See supra note 42. Emphasis added.
[45] See infra pp. 56-64.
[46] Bundes-Verfassungsgesetz [B-VG] [Constitution] art.140, ¶ 1 (Austria). An English translation of the 1920 Austrian Federal Constitution (Bundes-Verfassungsgesetz) is available in CODICES database of Venice Commission, at http://codices.coe.int; select Constitutions > English > Europe > Austria (last visited Mar. 20, 2007).
[47] See infra pp. 34-39.
[48] Anayasa [Constitution] art. 147 (1961) (Turkey). For an the English translation of the 1961 Turkish Constitution, before amendment of 1971, see Constitution of the Turkish Republic (Sadýk Balkan, Ahmet E. Uysal and Kemal H. Karpat trans., 1961), available at http://www.anayasa.gen.tr/ 1961constitution-text.pdf (last visited Mar. 20, 2007).
[49] 8 Anayasa Mahkemesi Kararlar Dergisi [hereinafter AMKD] [Reports of the Decisions of the Constitutional Court] 313 (1970).
[50] 9 AMKD 416 (1971).
[51] 8 AMKD 313, at 322 (1970); 9 AMKD 416, at 428-429 (1971.
[52] 5 U.S. (1 Cranch) 137 (1803).
For Chapter 2, click here.
For Chapter 3, Conclusion, Bibliography and Index, click here.
For PDF version, click here.
Kemal Gözler, Judicial Review of Constitutional Amendments: A Comparative Study, Bursa, Ekin Press, 2008, XII+126 p.[http://www.anayasa.gen.tr/jrca-1.htm] (Dec. 20, 2008)
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(Dec. 20, 2008)