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«This paper deals with the question of an amendment to the constitution that has been made pursuant to the formal requirements of the constitution but ...»

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UNCONSTITUTIONAL CONSTITUTIONAL AMENDMENTS

Aharon Barak *.

This paper deals with the question of an amendment to the constitution that has been made

pursuant to the formal requirements of the constitution but deviates from its basic structure.

The paper explores different views regarding this question in comparative law. It also examines the applicability of the doctrine of unconstitutional constitutional amendments in Israel.

I. PRESENTATION OF THE PROBLEM

There is disagreement in comparative constitutional law, primarily in the United States, regarding the justification for judicial review of the constitutionality of a statute.1 For the purpose of this paper, I assume that, in a given legal system, the constitution (expressly 2 or impliedly 3) recognizes judicial review of statutes that violate the..

provisions of the constitution. The question I wish to deal with is whether that judicial review also covers an amendment to the constitution that has been made pursuant to the provisions of the constitution regarding amendment of the constitution.4 It seems that * President (ret.) of the Supreme Court of Israel; Radzyner School of Law, Interdisciplinary Center (IDC), Herzliya. I wish to thank Professor Ariel Bendor, Professor Alon Harel, Judge Geula Levin, Justice Hanan Melcer, Judge Dr. Yigal Mersel, and Professor Suzie Navot for their helpful comments.

1 See Daniel Solove, The Darkest Domain: Deference, Judicial Review, and the Bill of Rights, 84 IOWA L. REV. 941 (1999); Christopher F. Zurn, Deliberative Democracy and Constitutional Review, 21 LAW & PHIL. 467 (2002); Luc B. Tremblay, General Legitimacy of Judicial Review and the Fundamental Basis of Constitutional Law, 23 OXFORD J. LEGAL STUD. 525 (2003); Leighton McDonald, Rights, “Dialogue” and Democratic Objections to Judicial Review, 32 FED. L. REV. 1 (2004); Jeremy Waldron, The Core of the Case Against Judicial Review, 115 YALE L.J. 1346 (2006);

Larry Alexander, Constitutions, Judicial Review, Moral Rights, and Democracy: Disentangling the Issues, in EXPOUNDING THE CONSTITUTION: ESSAYS IN CONSTITUTIONAL THEORY 119 (Grant Huscroft ed., 2008); Richard H. Fallon, Jr., The Core of an Uneasy Case for Judicial Review, 121 HARV. L. REV. 1693 (2008); David S. Law, A Theory of Judicial Power and Judicial Review, 97 GEO.

L.J. 723 (2009); Alon Harel & Tsvi Kahana, The Easy Core Case for Judicial Review, 2 J. LEGAL ANALYSIS 227 (2009).

2 Such as article 93 of the German Constitution. See GRUNDGESETZ FÜR DIE BUNDESREPUBLIK DEUTSCHLAND [GRUNDGESETZ] [GG] [BASIC LAW], May 23, 1949, BGBl. I, art. 93.

3 See Marbury v. Madison, 5 U.S. 137 (1803); CA 6821/93 United Mizrahi Bank Ltd. v. Migdal Cooperative Village 49(4) PD 221 [1995] (Isr.).

4 In principle, one can recognize judicial review of the constitutionality of a constitutional

–  –  –

there is no need for great persuasion in order to show that even those who support judicial review of the constitutionality of a (“regular”) statute do not necessarily have to recognize the existence of judicial review of the constitutionality of a constitutional amendment.5 The latter issue—judicial review of the constitutionality of an amendment to the constitution—lies at the foundation of this paper.6 This problem arises both in legal systems whose constitutions include provisions that have been expressly determined to be unamendable (“eternal clauses”) and in legal systems in which there are no express “eternal clauses.”

II. COMPARATIVE LAW

A. UNCONSTITUTIONAL CONSTITUTIONAL AMENDMENTS IN TURKEY

Turkey’s Constitution recognizes judicial review of the constitutionality of statutes.7 It also includes a number of provisions that cannot be amended (“eternal clauses”).8 These provisions determine that Turkey is a republic,9 a democracy, and a secular and socialist state, governed by the rule of law.10 The Constitution contains a general provision dealing with the amendment of the Constitution. Until 1971, the Turkish Constitution did not contain an express provision regarding the judicial review of constitutional amendments. The Turkish Constitutional Court interpreted the silence of the Constitution on this issue to mean that it authorized the Court to perform judicial review of the constitutionality of an amendment to the Constitution.11 5 See United Democratic Movement v. President of the Republic of South Africa 2003 (1) SA 495 (CC) (S. Afr.).

6 I assume that the constitution itself is constitutional. When the argument is that the constitution itself is unconstitutional, additional problems arise that stray beyond the scope of this argument. A good question arose before the Constitutional Court of Peru, where it was argued that the country’s Constitution was unconstitutional. The argument was rejected. The Constitutional Court discussed the question of its authority, granted to it by the Constitution, which according to the argument was unconstitutional. See judgment 14-2003 A1/TC of Dec. 17, 2003. I examine the constitutionality of an amendment to a constitution according to the state’s internal law and not in light of international conventions that bind it. See Stephen J. Schnably, Emerging International Law Constraints on Constitutional Structure and Revision: A Preliminary Appraisal, 62 U. MIAMI L. REV. 417 (2007TURKISH CONST., 1982, art. 148.





8 TURKISH CONST., 1982, art. 4: “The provision of Article 1 of the Constitution establishing the form of the state as a Republic, the provisions in Article 2 on the characteristics of the Republic, and the provision of Article 3 shall not be amended, nor shall their amendment be proposed.” 9 TURKISH CONST., 1982, art. 1: “The Turkish state is a Republic.” 10 TURKISH CONST., 1982, art. 2: “The Republic of Turkey is a democratic, secular and social state governed by the rule of law….”

11 See KEMAL GÖZLER, JUDICIAL REVIEW OF CONSTITUTIONAL AMENDMENTS: A COMPARATIVE

STUDY 23-24 (2008).2011] UNCONSTITUTIONAL CONSTITUTIONAL AMENDMENTS 323

In a judgment of June 16, 1970,12 the following question was discussed. The Turkish Constitution of 1961 included a provision according to which a person who had been convicted of certain offenses could not be elected to the legislature, unless he had been pardoned. A 1969 amendment to the Constitution annulled the provision regarding the pardon. The Constitutional Court determined that this amendment was not constitutional, as it had not been enacted by the legislature (the body authorized to alter the constitution) by the required majority. The Court added that even if the amendment had been enacted by the required majority, it would not have been constitutional due to its content. Another case of April 3, 197113 dealt with an amendment to the Constitution that had no formal fault. Despite this, it was held that the amendment was not constitutional and therefore null and void, as it contradicted the fundamental principles of the Constitution.14 In 1971, the Turkish Constitution was amended. In the amendment, it was determined that the Constitutional Court of Turkey can examine whether an amendment fulfills the formal requirements of a constitutional amendment.15 In the first case adjudicated after this amendment, the Constitutional Court examined the amendment of the Constitution (of 1973), according to which a majority of members of the military courts must be qualified to be judges. The amendment further determined that this condition did not need to be met in time of war. In its judgment of April 15, 1975,16 the Constitutional Court determined that this amendment was not constitutional, on the grounds that it contradicted the republican character of the state. The Court concluded that the amendment harmed judicial independence (enshrined in article 7 of the Constitution), which constitutes a component of the principle of the rule of law (enshrined in article 2 of the Constitution), which in turn constitutes an integral component of the state’s status as a republic (enshrined in article 1 of the Constitution). According to article 9 of the Constitution, articles 1 and 2 of the Constitution are unamendable.

In 1971, the Constitution was amended regarding an additional matter. It was determined that compensation for expropriation of land should not exceed the land’s value as declared by the owner to the tax authorities. In its decision of October 12, 1976,17 the Constitutional Court determined that the amendment was not constitutional,

12 Decision of June 16, 1970, No. 1970/31, 8 AMKD 313 (1970), referred to by GÖZLER, supra

note 11, at 40.

13 Decision of Apr. 3, 1971, No. 1971/37, 9 AMKD 416 (1971). GÖZLER, supra note 11, at 97 quotes the judgment (at 428-29), according to which the constitutional amendment must fulfill the “requirements of contemporary civilization” and must not violate “the coherence and system of the constitution.” 14 See GÖZLER, supra note 11, at 96.

15 TURKISH CONST., 1961, as amended in 1971, art. 147.

16 Decision of Apr. 15, 1975, No. 1975/87, 13 AMKD 403 (1975), referred to in GÖZLER, supra note 11, at 42.

17 Decision of Oct. 12, 1976, No. 1976/46, 14 AMKD 134-36 (1976), referred to in GÖZLER, supra note 11, at 43.

324 ISRAEL LAW REVIEW [Vol. 44: 321 as it impinged upon the nucleus of the property right. The amendment also derogated from the republican form of government, which constitutes a component of the republican character of the state, which cannot be changed in the Constitution.

In 1971, a further amendment to the Constitution determined that there should be no appeal of decisions of the Council of Judges to a judicial instance. In a judgment of January 28, 1977,18 it was determined that the amendment was not constitutional, since it derogated from the rule of law (safeguarded in article 2 of the Constitution), which constitutes a component of the republican nature of the state, which cannot be amended in the Constitution (as determined in article 9 of the Constitution). An additional amendment determined that there should be no judicial review of the decisions of the Prosecution Council. Similar to the judgment that dealt with the Council of Judges, the Court determined that the amendment was unconstitutional in its decision of September 27, 1977.

In 1982, a new Constitution was enacted in Turkey. Article 148(1) of the Constitution authorized the Constitutional Court to examine the constitutionality of an amendment to the Constitution. It was determined that such an examination should be limited to questions of form. Article 148(2) of the Constitution states as follows: “The verification of constitutional amendments shall be restricted to consideration of whether the requisite majorities were obtained for the proposal and in the ballot, and whether the prohibition on debates under urgent procedure was complied with.” The new Constitution further determines that Turkey is a republic (art. 1) and that the Turkish Republic is a democratic, secular, and socialist state governed by the rule of law (art. 2). These provisions cannot be amended (art. 4).

The new constitutional provision regarding the amendment of the Constitution has been examined several times by the Constitutional Court.19 The first time was in 1987.

In its judgment of June 8, 1987,20 the Constitutional Court determined that it was not authorized to decide on the unconstitutionality of an amendment, as this is not among the issues that are judicially reviewable pursuant to article 148(2) of the Constitution.

The second time it considered this constitutional provision, the Court discussed a 2008 constitutional amendment amending, inter alia, article 42 of the Constitution, which deals with rights and duties regarding education. The amendment added a provision to the Constitution, according to which: “No one can be deprived of the right to higher education due to any reason not explicitly written in the law. Limitations on the exercise of this right shall be determined by the law.” 18 Decision of Jan. 28, 1977, No. 1977/4, 15 AMKD 106-31 (1977), referred to in GÖZLER, supra note 11, at 44.

19 Ergun Ozbudun, Judicial Review of Constitutional Amendments in Turkey, 15 EUR. PUB. L. 533

–  –  –

The background to the amendment was as follows. Female students encountered prohibitions against entering institutions of higher education in traditional dress. The law was changed in order to allow them to do so. The Constitutional Court then determined that the law was unconstitutional. As a result, the above-mentioned constitutional amendment was enacted in 2008. In its judgment of June 5, 2008,21 the Constitutional Court determined that the amendment to the Constitution was unconstitutional. The reason for this was the amendment’s derogation from the secular character of the state (enshrined in article 2 of the Constitution)―a derogation that detracts from Turkey’s character as a republic (as enshrined in article 1 of the Constitution). This character cannot be amended in the Constitution.

B. UNCONSTITUTIONAL AMENDMENTS TO THE CONSTITUTION IN INDIA

The Constitution of India recognizes express judicial review of the constitutionality of statutes. It has no express “eternal clauses.” The Supreme Court of India recognized its power to determine that an amendment to the Constitution is unconstitutional.22 Much literature, both in India 23 and abroad,24 deals with the approach of India’s Supreme.

Court. The discussion of this case law might begin with Golaknath v. State of Punjab (1967).25 In this case, it was argued that the 17th amendment to the Constitution (of

1964) was unconstitutional, as it impinged upon property rights. The Supreme Court accepted the argument, striking down a number of judgments that had been handed

Decision of June 5, 2008, No. 2008/116.

This ruling was probably influenced by the German approach, and mainly by Dietrich Conrad, Limitation of Amendment Procedures and Constituent Power, 15-16 INDIAN Y.B. INT’L AFF. 347, 394 (1966-1967).



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