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A new typology of judicial review of legislation

Published online by Cambridge University Press:  15 July 2014

JOEL I COLÓN-RÍOS
Affiliation:
Faculty of Law, Victoria University of Wellington, PO Box 600, Wellington 6140, New Zealand
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Abstract

The distinction between strong and weak judicial review occupies a privileged place in comparative constitutional law. This article argues that it is necessary to generate a new typology that includes two other increasingly influential models. The two ‘new’ models can be identified as ‘strong basic structure review’ and ‘weak basic structure review’. The former, present in some common law countries such as India and Belize, not only provides judges with the ability to strike down legislation that is inconsistent with a particular constitutional provision, but also constitutional amendments incompatible with the principles on which the constitution rests. The latter model, weak basic structure review, currently present in some Latin American countries, also provides judges with the power to strike down ordinary and constitution-amending legislation, but gives ‘the people’, acting through a constituent assembly, the final word on the validity of any form of positive law. Finally, the article considers the possibility of the development of a fifth model in which even the constituent people would be bound by certain principles to be identified and enforced by judges.

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Research Article
Copyright
Copyright © Cambridge University Press 2014 

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References

1 Stephen Gardbaum prefers the phrase ‘new commonwealth model of constitutionalism’ to refer to this form of judicial review, since he argues that ‘weak-form judicial review’ is only one aspect of the system, the other being ‘mandatory pre-enactment political rights review’. Gardbaum, S, The New Commonwealth Model of Constitutionalism (Cambridge University Press, Cambridge, 2013) 1425. In this article, I will use the phrase judicial review in the context of all the models, since my focus is on the relationship between courts, legislatures and, as we will see shortly, the amending power. Moreover, I am looking at this relationship at the post-enactment moment, so apart from the occasional reference, no emphasis will be made in systems of a priori or pre-enactment review of legislation.

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2 Ibid 43–4. See also Tushnet, M, Weak Courts, Strong Rights: Judicial Review and Social Welfare Rights in Comparative Constitutional Law (Princeton University Press, Princeton, 2009).

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3 For a recent analysis of that type, see Dixon, R, ‘Weak-Form Judicial Review and American Exceptionalism’ (2012) 32(3) Oxford Journal of Legal Studies 487506.

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4 Canadian Bill of Rights, S.C. 1960.

5 Mark Tushnet recognizes this when he writes that ‘[T]he assertion that weak-form systems were invented in the late twentieth century may be overstated. Perhaps a more accurate statement would be that judicial review was invented in a weak form, but became transformed over two centuries to the point where weak-form systems had to be reinvented, with novel design features, in the late twentieth century.’ Tushnet, M, ‘Alternative Forms of Judicial Review’ (2003) 101 Michigan Law Review 2781, see (n 1).

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6 In civil law countries, constitutional courts used to be (and in some countries are still) given the name of ‘tribunals’ to distinguish them from ‘courts’. Courts were as part of the judicial branch of government and, according to the doctrine of the separation of powers, could not play a role in law-making. In that respect, one might argue that the Tribunal de Garantías Constitucionales was not really a judicial body, and that it is thus inaccurate to speak of it as an instance of judicial review. However, to this day, many of the constitutional courts in Latin America and Europe attributed with the power to strike down legislation are technically separate from the ordinary judicial system, and yet are normally seen as part of a system of strong judicial review. For a brief discussion, see Merryman, JH and Perdomo, RP, The Civil Law Tradition: An Introduction to the Legal Systems of Europe and Latin America (Stanford University Press, Stanford, 2007) 37–8.

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7 Political Constitution of Ecuador (1945), art 160(4). This constitution lasted only one year, and in 1946, some of the functions of the tribunal were transferred to the State Council (Consejo de Estado), and the ability to suspend the effects of laws inconsistent with the constitution was abolished (placing the power to declare laws unconstitutional in the exclusive hands of Congress). See arts 146(2) and 189, Constitution of Ecuador (1946). The Tribunal de Garantías Constitucionales was re-established at different times during the twentieth century. In 1984, the tribunal was given the power to suspend laws inconsistent with the constitution at the request of one of the parties of a specific case (Congress having the final word on their validity). See art 141, Constitution of Ecuador (1979, as amended). Ecuador maintained a system of weak judicial review for a good part of the twentieth century. The Constitution of 1967, for example, attributed the Supreme Court with the power of suspending (at the request of a party or motu proprio) the effects of any law, regulation, or decree, either for formal defects or substantive inconsistencies with the constitution, and Congress was given the final power to determine whether that suspension should be permanent. Art 205(4), Constitution of Ecuador (1967). It was not until 1993 when the Constitutional Chamber of the Supreme Court was given the power of striking down legislation identified as unconstitutional (and their validity therefore temporarily suspended) by the Tribunal de Garantías Constitucionales, a power that was final and had general effects. Art 146(1), Constitution of 1978 (as codified in 1993).

8 In the context of a confederate state, the Colombian Constitution of 1858, stated in Article 50: ‘The Supreme Court is responsible for suspending the execution of the legislative acts of the states, when they are contrary to the Constitution or to the laws of the Confederation; notifying the Senate of this suspension, so that this latter entity can make a final decision on the validity or nullity of those acts.’

9 See, for example, arts 186, 187 and 224 of the Constitution of Venezuela (1830).

10 For a discussion, see AG Jiménez, Constitucionalismo en Ecuador (Centro de Estudios Constitucionales, Quito, 2012) 175. These arrangements are generally understood by Latin American constitutionalists as examples of parliamentary sovereignty.

11 There are some exceptions, which will be considered in Part V.

12 See BORA, section 4: ‘No court shall, in relation to any enactment (whether passed or made before or after the commencement of this Bill of Rights): (a) hold any provision of the enactment to be impliedly repealed or revoked, or to be in any way invalid or ineffective; or (b) decline to apply any provision of the enactment—by reason only that the provision is inconsistent with any provision of this Bill of Rights.’

13 See BORA, section 6.

14 See Moonen v Film and Literature Board of Review [2000] 2 NZLR 9 (CA). For a discussion, see Geiringer, C, ‘On A Road to Nowhere: Implied Declarations of Inconsistency and the New Zealand Bill of Rights Act’ (2009) 40 Victoria University of Wellington Law Review 613.

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15 It could be argued that the very first formulation of the weak judicial review is to be found in the interpretative exercises suggested by some judges in Great Britain in the seventeenth century, and later accepted even by theorists of orthodox parliamentary sovereignty such as AV Dicey. Under this approach, judges would recognize the ultimate law-making power of a sovereign parliament, but would try, whenever possible, to give legislation a meaning consistent with natural law or with some principles of morality. This is, for example, one of the interpretations that can be given to Sir Edward Coke’s statement in the Court of Common Pleas in 1610, to the effects that ‘when an Act of Parliament is against common right or reason, or repugnant, or impossible to be performed, the common law will control it, and adjudge such an Act to be void’. Dr Bonham’s Case (1610) 8 Co. Rep. 114a at 118a. See also Day Savadge (1614) Hob 85; 80 ER 235 at 237 (Chief Justice Hobart); R v Love (1653) 5 State Tr 825 at 828 (Keble, J); London v Wood (1701) 12 Mod Rep 669 at 687–688 (Chief Justice Holt); Gough, JW, Fundamental Law in English Constitutional History (Clarendon Press, Oxford, 1955) 35; Dicey, AV, An Introduction to the Study of the Law of the Constitution (Liberty Classics, Indianapolis, 1982) 1920.

16 See HRA, section 10(2).

17 It is possible to have a system that combines weak and strong judicial review. This could be the case of a constitution exhibiting a tiered amendment process, and only requiring a legislative majority for some constitutional changes. With respect to provisions that are amendable through a simple majority, such a system could be said to fall under the weak judicial review model (as a simple legislative majority could override a judicial decision invalidating a law inconsistent with one of those provisions), and with respect to provisions that can only be changed through qualified majorities, it would fall under the strong judicial review model.

18 Marbury v Madison, 5 U.S. 137 (1803). This does not mean that the practice of judicial review of legislation was unknown in the United States before Marbury. For a discussion, see Treanor, WM, ‘Judicial Review before Marbury’ (2005) 58 Stanford Law Review 455.

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19 Cf Tushnet (n 5) 2782, who argues that Marbury could be understood as a ‘departmentalist decision’ (that is, a decision consistent with the view that each branch of government has the right to determine the constitutionality of the actions of other branches if those actions affect its own operation) since the court ‘determined that Congress had improperly rearranged the Constitution’s allocation of power within the judiciary’.

20 Marbury (n 18) 177–178.

21 Ibid.

22 Countries like the United States, in which courts of general jurisdiction have the power to review the constitutionality of legislation, are normally said to operate under a decentralized or diffused system of judicial review. Although I make some brief references to the distinction between decentralized and centralized systems of judicial review (as well as to the distinction between abstract and concrete review), this distinction is not relevant for the typology presented in this article. It is not that these distinctions are unimportant (or that they may not indirectly affect the ‘strength’ of a system of strong judicial review), but that they would belong to a typology of a different nature than the one I am developing here.

23 Constitution of Spain (1978) art 161. This is the type of system that is often referred to as the Kelsenian or Austrian system of constitutional review (exemplified in Chapter VI of the Austrian Constitution (1920)), which was also present (though only with respect to provincial statutes inconsistent with a federal constitution), in the Constitution of Venezuela (1858) which attributed to the Supreme Court of Justice the exclusive function of ‘Declaring the nullity of the legislative acts adopted by the provincial legislatures, at the request of any citizen, when they are contrary to the constitution’. Art 113(9).

24 Ibid arts 167–168.

25 For a discussion, see Merryman and Perdomo (n 6) 40–7. There are some exceptions, of course. For example, in Colombia, the Constitutional Court is part of the judicial branch. See Title VIII, Constitution of Colombia (1991).

26 Under this model, only a Constitutional Court (or the Constitutional Chamber of the Supreme Court) can declare the invalidity of legislation with erga omnes effects (at the request of any citizen and outside the context of a specific case). However, in the context of a specific case, any judge can disapply an ordinary law which she deems inconsistent with the constitution (only with effects on the parties). In this respect, this arrangement can be characterized as a mixed model, combining centralized and decentralized judicial review. See Constitution of Colombia (1991), art 241(4), art 4; Constitution of Venezuela (1999) art 336(1), art 334. For an extended discussion, see AR Brewer-Carías, El Sistema Mixto o Integral de Control de Constitucionalidad en Colombia y Venezuela (Universidad Externado de Colombia, Bogotá, 1995).

27 In a certain way, the French theory of the ‘switchman’ nicely exemplifies this basic feature of strong judicial review. According to that approach, decisions of the Conseil Constitutionnel that a legislative enactment is unconstitutional are not properly understood as final: the court is only letting the legislature know that it must use the constitutional amendment procedure in order to adopt the ‘unconstitutional’ norm. For a discussion, see Baranger, D, ‘The Language of Eternity: Judicial Review of the Amending Power in France (Or the Absence Thereof)’ (2011) 44(3) Israel Law Review 389.

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28 Art 1 of the Basic Law protects the principle of human dignity. It also states, in its numeral (3), that ‘The following basic rights are binding on the legislature, executive, and judiciary as directly valid law.’ That list of basic rights is contained in arts 2–17 of the Basic Law. Art 20 protects the principle of democracy, the rule of law and the right of resistance.

29 For example, the Constitution of the Gran Colombia (1821), established in its art 190 that the principles of national independence, the republican form of government and representative democracy, protected in Title I and Title II, could never be altered. In a similar way, art 110 of the Constitution of Ecuador (1843), stated that art 3 (which established the form of government), could never be reformed. The Constitution of Ohio (1803), in its art VII, stated in its amendment rule that ‘[N]o alteration of this constitution shall ever take place, so as to introduce slavery or involuntary servitude into this State.’ For a historical and comparative overview, see Roznai, Y, ‘Unconstitutional Constitutional Amendments: The Migration and Success of a Constitutional Idea’ (2013) 61 American Journal of Comparative Law 657. See also Albert, R, ‘Constitutional Handcuffs’ (2010) 42(3) Arizona State Law Journal 663; Gözler, K, Judicial Review of Constitutional Amendments: A Comparative Study (Ekin Press, Bursa, 2008).

30 Art 112 of the constitution states, among other things, that constitutional ‘amendments must never … contradict the principles embodied in this Constitution, but solely relate to modifications of particular provisions which do not alter the spirit of the Constitution’. For a discussion, see Smith, E, ‘Old and Protected? On the “Supra-Constitutional” Clause in the Constitution of Norway’ (2011) 44 Israel Law Review 369.

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31 In Germany, see e.g. The Klass Case, 30 BVerGE 1 (1970) and The Electronic Eavesdropping Case, 109 BverfGE 279 (2003), where the court decided not to strike down the constitutional amendments in question but asserted its jurisdiction to do so. At the time of writing, in Brazil, whose Constitution of 1988 also contains an eternity clause (art 60(4)), there is a constitutional amendment being considered by Congress (Amendment No. 33), which, among other things, would provide a super-majority in Congress with the power to override judicial decisions on the validity of constitutional amendments.

32 Georges Vedel has advanced this argument with respect to the eternity clause contained in art 89 of the French Constitution of 1958. G Vedel, ‘Souveraineté et Supraconstitutionnalité’ (1993) 67 Pouvoirs 79, 90. Cf O Beaud, ‘La souveraineté de l’Etat, le pouvoir constituant, et le Traité de Maastricht’ (1993) Revue Française de Droit Administratif 1056.

33 Carl Schmitt, one of the first constitutional theorists to develop the doctrine of unconstitutional constitutional amendments, thought that the amending power could not be used in this way. The removal of an eternity clause, he argued, would amount to the creation of a new constitution, something that could only be done by the people in the exercise of the constituent power. See C Schmitt, Constitutional Theory (Duke University Press, Durham, 2008) 150. The relationship between the concept of constituent power and constitutional amendments will be discussed below.

34 The question, as put by Aharon Barak, is whether the substantive principles that are protected from constitutional change emerge from the ‘entire constitution’ and not only from the eternity clause. If the former, then the abolishment of the limits to constitutional change through a two-step process would not be possible: judges would strike down amendments inconsistent with the principles protected by the eternity clause even in the absence of the clause. Barak, A, ‘Unconstitutional Constitutional Amendments’ (2011) 44(3) Israel Law Review 321, 335.

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35 It could be argued that the adoption of the doctrine of the basic structure by a court (as will be seen shortly, the basic structure doctrine usually emerges from a judicial construction and is not explicitly recognized in the constitutional text), is actually a sign of weakness. That is to say, judges may (as was the case in India) adopt the doctrine of the basic structure as a reaction against a legislature that insists in asserting its power over the judiciary (for example, by overturning judicial interpretations of the constitution through formal constitutional amendments). But from a legal point of view, a court that successfully asserts its jurisdiction to invalidate constitutional amendments even in the absence of an eternity clause, has extended the scope of its strike-down power in a way that goes beyond the traditional strong judicial review model.

36 This may partially explain the reasons why the idea of unconstitutional constitutional amendments was rejected by the US Supreme Court early in the twentieth century. See e.g. Leser v Garnett, 258 U.S. 130 (1922).

37 Kesavananda Bharati Sripadagalvaru v State of Kerala, 1973 (SUP) SCR 0001.

38 For a discussion, see O’Connell, R, ‘Guardians of the Constitution: Unconstitutional Constitutional Norms’ (1999) 4 Journal of Civil Liberties 69.

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39 For a discussion, see Barak (n 34) 326. The idea that the phrase ‘to amend’ implicitly limits the scope of the constitution-amending power has also been defended by many authors. See eg Marbury, WL, ‘The Limitations upon the Amending Power’ (1920) 33 Harvard Law Review 223, 225: ‘It may be safely premised that the power to ‘amend’ the Constitution was not intended to include the power to destroy it.’

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40 For a recent book-length examination of the doctrine of the basic structure, see Krishnaswamy, S, Democracy and Constitutionalism in India: A Study of the Basic Structure Doctrine (Oxford University Press, New Delhi, India, 2009).

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41 In Premier of Kwazulu Natal v President of SA, CCT 36/95 at para 49, the South African Constitutional Court arguably asserted jurisdiction to declare a constitutional amendment to the Interim Constitution invalid if inconsistent with the constitution’s basic structure. ‘Even if there is this kind of implied limitation to what can properly be the subject matter of an amendment to our Constitution’, expressed the court, ‘[neither of these amendments] can conceivably fall within this category of amendments so basic to the Constitution as effectively to abrogate or destroy it.’ Whether these expressions are still valid under the 1996 constitution is an open question, given that Section 74 of that constitution establishes a special process for the amendment of Section 1 (which protects principles as fundamental as human dignity, the achievement of equality and the advancement of human rights and freedoms, and the rule of law). The explicit authorization to alter principles of such importance makes the development of the doctrine of the basic structure difficult at best (it could nevertheless be argued that a constitutional amendment contrary to the Constitutional Principles contained in the Interim Constitution—which were used by the court to review the draft constitution approved by a Constitutional Assembly—could still be used to control the amending power under the 1996 constitution).

42 Barry M Bowen v Attorney General of Belize (Claim No 445 of 2008). For a discussion, see Bulkan, A, ‘The Limits of Constitution (Re)-Making in the Commonwealth Caribbean: Towards the “Perfect Nation”’ (2013) 2(1) Canadian Journal of Human Rights 81. Other countries in which the Indian doctrine of the basic structure has been influential include Bangladesh and Sri Lanka. For a discussion, see Halmai, Gábor, ‘Unconstitutional Constitutional Amendments: Constitutional Courts as Guardians of the Constitution?’ (2012) 19(2) Constellations 182.

43 See also The Prime Minister of Belize v Alberto Vellos [2010] UKPC 7.

44 The British Caribbean Bank Limited v Attorney General of Belize (Claim No 597 of 2011). These cases have not been overturned by the Belize Court of Appeal.

45 Ibid para 50.

46 Ibid para 45.

47 Ibid.

48 For an examination of the theoretical basis of common law constitutionalism, see Poole, T, ‘Back to the Future? Unearthing the Theory of Common Law Constitutionalism’ (2003) 23(3) Oxford Journal of Legal Studies 435, 439. For defences of common law constitutionalism, see J Laws, ‘Law and Democracy’ (1995) Public Law 72; T Allan Constitutional Justice: A Liberal Theory of the Rule of Law (Oxford University Press, Oxford, 2001); Lord Cooke of Thorndon, ‘The Myth of Sovereignty’ (2005) 3 New Zealand Journal of Public and International Law 39; (see also Lord Cooke’s judgment in Taylor v New Zealand Poultry Board [1984] 1 NZLR 394, 398 (CA)).

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49 The strongest judicial (obiter) comments in favour of this approach are the ones made by some of the Lords in Jackson v Attorney General [2005] UKHL 56. For example, Baroness Hale maintained that courts will ‘treat with suspicion (and might even reject) any attempt to subvert the rule of law by removing governmental action affecting the rights of the individual from all judicial scrutiny’. Ibid para 159. For a discussion, see T Mullen ‘Reflections on Jackson v Attorney General: Questioning Sovereignty’ 27(1) Legal Studies 1, 13.

50 For example, in Kesavananda, the court defended the basic structure doctrine by partly relying on the idea that unlike parliament, the constituent assembly that drafted the constitution was highly representative of the Indian people as a whole. ‘Under these circumstances’, the court stated, ‘the claim that the electorate had given a mandate to the party to amend the Constitution in any particular manner is unjustified’ (Kesavananda (n 37) para 702). Only an entity that truly represents the people, it is implicitly suggested by the court, could ever alter the constitution’s basic structure. In Belize the situation is similar. In the recent case of The British Caribbean Bank v Attorney General of Belize (n 44, para 44), the Supreme Court of Belize emphasized that the purpose of the basic structure doctrine is to limit the amending power of the National Assembly, implicitly suggesting that the people, acting outside the National Assembly, could insert any content into the constitution. Moreover, discussing Bowen v Attorney General of Belize (n 42, para 28), the court maintained that the fundamental principles of the constitution ‘emanate from the Preamble which propounds the will of the people of Belize’.

51 Barak (n 34) 338.

52 Some courts, for example, have determined that a constitutional referendum does not count as an exercise of the people’s constituent power. Under that approach, in the context of a constitutional referendum, the people only exercises the ordinary power of constitutional reform. That is to say, the referendum is merely a means to make ordinary constitutional amendments more difficult, while the exercise of constituent power involves the convocation of an extraordinary constitution-making body. See Sentencia C-141/10 (Part 1.2) of the Constitutional Court of Colombia. For an example of a different approach (in the context of a referendum called outside the ordinary amendment rule), see Decision No 62-20-DC, Nov. 6, 1962, Rec. 27 (French Constitutional Council).

53 For a recent analysis of the Colombian approach, see Bernal-Pulido, C, ‘Unconstitutional Constitutional Amendments in the Case Study of Colombia: An Analysis of the Justification and Meaning of the Constitutional Replacement Doctrine’ (2013) 11(2) International Journal of Constitutional Law 339–57.

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54 It is worth noting here that the Colombian Constitution is relatively easy to amend: it can be amended by two separate votes in the legislative assembly, the first vote requiring a simple legislative majority, the second one requiring an absolute majority in each house of Congress (art 375).

55 Sentencia 551/03.

56 Ibid para 23.

57 The court here mostly relied in the Indian jurisprudence briefly discussed in the previous section and also referred to the writings of several European and Latin American authors, including Lowenstein, K, Teoría de la Constitución (Ariel, Barcelona, 1986); Schmitt, C, Teoría de la Constitución (Editorial Revista de Derecho Privado, Madrid, 1934); Burdeau, G, Traité de Science Politique (Paris, LGDJ, 1969); de Vega, P, La Reforma Constitucional y la Problemática del Poder Constituyente (Tecnos, Madrid, 1999); and Campos, G Bidart, Historia e Ideología de la Constitución Argentina (Ediar, Buenos Aires, 1969).

58 Sentencia 551/03, at para 28.

59 Ibid at para 33.

60 Like the Supreme Court of India, the Colombian Constitutional Court also placed some emphasis in the text of the amendment rule, and on the meaning of the phrase ‘to amend (reformar). See Sentencia 551/03 at para 34.

61 Sentencia 551/03 at para 33. The court limited itself to give one example of a ‘constitutional substitution’: ‘[f]or instance, the power of constitutional reform cannot be used in order to substitute the Social and Democratic State and the Republican form of government (Article 1) with a totalitarian state, a dictatorship or a monarchy, because that would mean that the Constitution of 1991 has been replaced with a new one’. Ibid at para 33. Although in 2003 the court upheld most of the amendments at issue, it has since then exercised its power to review the constitutionality of constitutional amendments in several cases. See, for example, Sentencia C-141/10.

62 Ibid.

63 See art 69 of the Constitution of Belize (1981) and art 368 of the Constitution of India (1949). In 2008, the Turkish Constitutional Court declared invalid a set of amendments (which sought to abolish the headscarf ban in universities), under a reasoning similar to that of the Colombian Constitutional Court in Sentencia 551/03. However, the Constitution of Turkey does not contain an opening for the exercise of constituent power (see art 175 of the Constitution of the Republic of Turkey (1982)). For a discussion of the Turkish decision, see Roznai, Y and Yolcu, S, ‘An Unconstitutional Constitutional Amendment – The Turkish Perspective: A Comment on the Turkish Constitutional Court’s Headscarf Decision’ (2012) 10(1) International Journal of Constitutional Law 175.

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64 Art 411, Constitution of Bolivia.

65 Arts 441–444, Constitution of Ecuador.

66 Arts 411 and 444 of the constitutions of Bolivia and Ecuador. The Constitution of Venezuela (1999) was the first to establish a version of the weak basic structure review model in which the popular initiative to convene a constituent assembly was present.

67 The Colombian Constitutional Court has struck down constitution-amending legislation on several occasions, and these decisions have been, for all practical purposes, final. Nevertheless, when in 2010 (Sentencia C-141/10) the Constitutional Court invalidated an amendment that would have allowed President Alvaro Uribe to run for a third consecutive term, some of his supporters mentioned the possibility of convening a constituent assembly to override the court’s decision.

68 For a recent study on the concept of supra-constitutionality, see Roznai, Y, ‘The Theory and Practice of ‘‘Supra-Constitutional’’ Limits on Constitutional Amendments’ (2013) 62(3) International and Comparative Law Quarterly 557.

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69 Locke, John, Two Treatises of Government (Hafner Publishing Company, New York, 1956) 189, para 135.

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70 Emmanuel Sieyès, What is the Third Estate? (Praeger, New York, 1964) 124, 156–7 (emphasis in the original).

71 See Thomas Hobbes, Leviathan (Penguin Books, 1968) 321–2; Jean Bodin, Six Books of the Commonwealth Book 1, Chapter VIII (1576).

72 The Southwest Case, 1 BverfGE 14 (1951) in Comparative Constitutional Law (WF Murphy and J Tanenhaus eds) (St Martin’s Press, New York, 1977) at 208 (emphasis added). The court was citing with approval a decision of the Bavarian Constitutional Court. See also the dissenting opinion of Chief Justice Kennedy in State (Ryan) v Lemmon, [1935] 170 I.R. 197: ‘I have just stated my opinion that the Act, No. 37 of 1931, as a whole enactment, has never become law. I have further to add that I am also of opinion that, for the reasons already given, parts of the amendment (the new ‘‘Article 2a’’) are incapable of being validly enacted under the Constitution, some as repugnant to the Natural Law and therefore repugnant to the Source of power and authority acknowledged and declared by the Constituent Assembly, others as repugnant to some of the principles postulated by the Constituent Assembly as fundamental.’ For a discussion of Ryan, see Jacobsohn, G, ‘An Unconstitutional Constitution: A Comparative Perspective’ (2006) 4 International Journal of Constitutional Law 460.

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73 See O’Connell, R, ‘Guardians of the Constitution: Unconstitutional Constitutional Norms’ (1999) 4 Journal of Civil Liberties 48, 54. For a brief discussion of the influence of natural law in the development of judicial review in France, see A Stone Sweet, ‘Why Europe Rejected American Judicial Review – And Why It May Not Matter’ (2003) 101 Michigan Law Review 2744, 2751–8.

74 Herdegen, MJ, ‘Unjust Laws, Human Rights and the German Constitution: Germany’s Recent Confrontation with the Past’ (1995) 32 Columbia Journal of Transnational Law 591. Herdegen reports that in Judgment of 23 April 1991, BVerfG 1st Sen., 84 BVerfGE 90, the Federal Constitutional Court stated that the legislature, in its ordinary and amending capacity, as well as the original creator of the constitution must comply with ‘basic requirements of justice which include the principle of equality before the law and the prohibition of arbitrariness’. Ibid 604.

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75 Lisbon Case, BVerfG,2 BvE 2/08 from 30 June 2009, paras 216–217.

76 One may ask, however, what form would the exercise of constituent power that the court has in mind would take? It could not take place through the ordinary amendment procedure, as the point is to suggest that not only the ordinary amending power is limited by the principles protected through the Basic Law’s eternity clause. Perhaps the type of exercise of constituent power that the court had in mind was a popular referendum in which the people are asked to ratify a new constitution, and that this referendum is not only understood as an exercise of constituent power, but is called in the absence of any violation of the established constitutional order. For a discussion of this aspect of the decision and of its relationship to art 146 of the Basic Law, see Murkens, JEK, From Empire to Union: Conceptions of German Constitutional Law since 1871 (Oxford University Press, Oxford, 2013).

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77 Supreme Court of Justice of Venezuela, Constitutional Chamber, Expediente N. 06-0747, 28 de julio de 2006, (Part IV). Since then, this statement has been quoted in at least two subsequent Supreme Court of Justice judgments. See Expediente N. 06-0570, 18 de diciembre de 2006; Expediente N. 08-1617, 3 de febrero de 2009.

78 It could be argued that, in extreme cases, the limits imposed by human rights on the exercise of constituent power could be enforced by the international community (under the emerging international law doctrine of the responsibility to protect). For a discussion, see Peters, A, ‘Humanity as the A and Ω of Sovereignty’ (2009) 20(3) European Journal of International Law 513. See also Valdés, J Tapia, ‘Poder Constituyente Irregular: Los Límites Metajurídicos del Poder Constituyente Originario’ (2008) 6(2) Estudios Constitucionales 121, 132–4.

79 A partial example of this model operating in actual constitutional practice is provided by the decision of the South African Constitutional Court in Certification of the Constitution of the Republic of South Africa. In that case, the Constitutional Court determined that some provisions of the constitution adopted by a Constitutional Assembly had to be changed since they were inconsistent with a set of principles set out in the Interim Constitution. Certification of the Constitution of the Republic of South Africa, 1996 (4) SA 744 (CC). Nevertheless, the fact that in this case the limits were pre-established in an Interim Constitution, makes the South African example different from what would be the ideal type of the fifth model (a system in which judges identify certain unwritten principles that are then used to limit the constitution-making power of the people).

80 AV Dicey Introduction to the Study of the Law and the Constitution (Macmillan, London, 1959) 36–7. See also A de Tocqueville, Democracy in America (New American Library, New York, 1956) 74.

81 For a discussion, see E Morgan, Inventing the People: The Rise of Popular Sovereignty in England and America (Norton & Co, New York, 1989). This view may be currently under challenge by the increasing use of the referendum in the United Kingdom (both at a local and national level). V Bogdanor, The New British Constitution (Hart Publishing, Oxford, 2009).

82 Weill, R, ‘The New Commonwealth Model of Constitutionalism Notwithstanding: On Judicial Review and Constitution-Making’ (2014) 62 The American Journal of Comparative Law 127, 132.

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83 Jackson (n 49) para 126 (Lord Hope).

84 The idea has nevertheless received some academic support outside the context debates about common law constitutionalism in the United Kingdom. See, for example, Landau, D, ‘Abusive Constitutionalism’ (2013) 47 UC Davis Law Review 189.

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A new typology of judicial review of legislation
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