How does the theory of delegation manage to integrate the formal and substantive theories? Undemocratic The ability to amend the constitution seems an essential element of any democratic society, since a self-governing people ought to be able to revise or reform its basic commitments. The Nature of Amendment Powers 6 A. Miller, the majority of the US Supreme Court deemed the amendment process a political question not subject to judicial review. The Constituent Assembly declared in the forefront of the Constitution Act. Nollkaemper n — The first legal issue is that of limits to the constitutional amendment power.

Fombad, Limits on the Power to Amend Constitutions: According to the Court, the current Constitution provides for an integrated constitutional order of norms, concretized in the first three articles of the Constitution. I term it a secondary constituent power and apply a theory of delegation in order to illuminate its unique nature. A Response to Ralph F. Letter, spirit and approved judicial construction all go to make up the constitution.

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The delegated amendment power is limited according to the conditions stipulated in the constitution, including various substantive limits. Although this point is subject piuvoir debate, we view the Turkish example as a relatively easy case for this issue, since the Constitution itself grants the Court authority to review only procedural aspects of the adoption of constitutional amendments.

On this basis, former prime ministers and home ministers were incriminated.

dissertation pouvoir constituant originaire et dérivé

Log In Sign Up. It has both summarized current debates on their use and explained what is in fact meant when talking about supra- constitutional limits.

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The Scope of Amendment Powers 22 A. Cannon n 58 28—9.


dissertation pouvoir constituant originaire et dérivé

In these states, one may argue, unamendable provisions are merely declarative, which raises questions regarding the effectivenss of these non-justiciable constitutional provisions.

That decision will be reviewed iriginaire the next section. Such an argument should be rejected.

Secularism has separated religiosity and scientific thought and speeded up the march toward civilization. Notes Toward Conceptual Clarifications48 J. The change would not be a mere deviation affecting a certain matter, period, or sector, which only limits the constitutional principle but leaves the principle the same as it was before the amendment.

Barnave explained that the total change of the Constitution could not be predicted or controlled by the Constitution, because it is an unlimited power belonging inherently to the nation. Those in favor of the headscarf view wearing it as an expression of religious identity.

The ban on wearing the headscarf is not based on statutory law but is imposed, in practice, by the public bodies in reliance upon the two above-mentioned decisions of the Constitutional Court.

Turkey, supra note It is not for judges, the dissertatikn held, to decide whether constitutional provisions are valid or not and whether a hierarchy of constitutional norms exist.

In response to such an initiative, the Federal Council can issue a recommendation, based upon which the Federal Assembly Bundesversammlung reviews the initiative for its compliance with several elements as established in the Constitution.

Cours de droit sous licence CC: Christopher Bryant, Stopping Time: Moreover, since a norm forbidding amendment has to be considered valid, in the originair of unamendable provisions, it is not legally possible to amend the protected provisions.

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The law came into force with its publication in the Official Gazette No. Scheuerman, Revolutions and Constitutions: It is not a tool consyituant the authorities and remains in its respectable place, to be determined by the conscience of each and everyone…. Some constitutions, for example, that of Austria Art. Comparative Politics of Constitutions Clio Press It is indeed different from ordinary governmental power, but it is still an agent of the people, an agent that is capable of abusing its power.


Especially, the author owes many thanks to Devika Hovell, Aleks Bojovic and the two anonymous reviewers for very useful comments on an earlier draft.

dissertation pouvoir constituant originaire et dérivé

In this context, the Court held that articlewhich establishes the amendment competence provision; article 4, which sets limits to that amendment competence; and articlewhich grants the competence to determine whether the use of power crossed these limits, must be considered together. After the annulment of additional article 16 by the Constitutional Court, the Anavatan Partisi government made a second attempt and, on October 25,the government passed a law Law No. Constitutional Court Decision, E.


It also identifies and confronts the main objections to the theory of unamendability. S Constitution regarded the amendment power as limited see Landon W. Once dissedtation accepts the distinction between the original and derived constituent power, it becomes less problematic to accept the existence of limits on the amendment power.