Assoc. prof. dr. Andraž Teršek
THE STATE OF AFFAIRS
Everything I do, or not do, regarding the law and communicating the law in public, is founded with the best possible intentions. In undisputed bona fide manner.
Sometimes my fellow professors and legal scholars/theoreticians and me, who belong to the generation born, let me say for the sake of the argument itself, but not categorically decisive, between 1974 and 1984, also exchange thoughts about how it is sometimes so irritating and disturbing, even unbearable, to know, hear, read and observe when some (not all, not even close to all, just some, even though those “some” are still too many) of the older representatives of the legal profession in Slovenia (I really don’t want to say “do not understand” or “are not (cap)able to think about certain concepts of legal theory and philosophy”, even though it sometimes strongly appears to be so)… don’t want to seriously discuss certain constitutional issues, concepts, and doctrines. Even constitutional law and constitutionalism as such, in particular. But we do care about these issues, concepts, and doctrines – a lot. And we care about them, individuals, as we care for our homeland, our profession, our public role, democracy, freedom, human rights and freedoms, and the people. We also care for the future, strongly, but with concern.
It is a problem and we do not like it, because this is also true of some of the otherwise publicly recognizable and influential teachers of the law. With public and institutional influence. So it matters quite a bit. They, themselves matter, academically and publicly. Even politically. How they speak publicly about particular legal issues or the law as such, how they teach the law, how they decide on legal questions when being at a position of public officials – it matters, substantially, it is a great deal. And we respect, deeply, all these facts and circumstances. We respect them. But… So… let there be a constructive discussion, let us discuss – with them, together. Let there be a genuine “discursive legal community”, enabling the homeland to be and to develop, to progress as a “discursive constitutional democracy”, as a model of “foundational”, social (Well-fare), constitutional democracy, striving to be a real “democratic community.”
And, of course, the same goes for the civil servants and other public administration employees who have completed one of the formal university law study programs. And are official “lawyers”, the equal (and with this equality comes the equal responsibility) representatives of the “legal community.” This is also the reason why we – limited in time and space – use our privilege of writing, speaking in public, publishing, and discussing these constitutional concepts and questions, in public, and especially with the students. Critically. But we do not discuss these issues with those respectful members of the national legal community who still do not want to discuss these issues with us – especially the issues when there is a substantial or strong disagreement at hand. It’s mainly because they, those individuals – highly respectful lawyers – obviously do not want to accept us as equal discussants when we speak and write about issues they do not want to discuss. Or even, on some occasions, they simply and obviously do not understand certain concepts and legally-philosophical approaches towards law, “the state of affairs” in the legal profession. In such a social and academic environment it is then impossible to create and evolve the “debating/discursive constitutional democracy.” Such democracy, most of the time only “written on paper”, even though generally accepted in legal theory, should also be an open environment, a sphere, founded on the principles (and values) of equality, liberty, openmindedness, and pluralism, where people, professors, researchers, teachers…, where “we” could and should discuss such issues – constructively and cooperatively, with the best intentions and in common search for the best possible (most founded and persuasive) argument.
Debating on so important legal issues, such as the “unconstitutional constitutional amendment doctrine”, or “constitutional law-making activism, or “free speech”, or “right to privacy”, or the “doctrine/mechanism of constitutional escalation of sanctions against the legislator”, or the “general problem with the Judiciary”…, should be our common concern and aspiration. Even though debating could be quite a polemical one. And regardless we could even be silenced; but with the “power of an argument”, expressed and confirmed in the discussion, in debating, and not vice versa, with “the argument of power”. Or worse – with ignoring us, by pretending as if we do not exist and as if we have nothing important and useful to say about the law, and especially about the constitutional law and modern constitutionalism. It could even be proven to us, the younger generation of legal scholars, that our legal explanations are not persuasive enough, that they lack the support in legal literature, doctrines, in comparative case-law, or on the basis of legal reasoning. Or, that we are simply – eccentric fools. But this is not the case.
The parliamentary political parties act somewhat differently; if our views suit them, they refer to them; if they do not suit them, they refer to us as someone who has been (daily-politically) “sold” to someone else, or as someone who is (to say gently) “confused”, or pragmatically recalculated. That is the way it is with daily politics (political parties). But not with us. Hm, I hope not… At least as far as I am concerned, this does not apply to me, to my professional and public work, verifiably and provably.
As long as we have the privilege of publicly expressing our legal views and convictions, we must exercise them. At all costs – professionally and privately.
ON UNCONSTITUTIONAL CONSTITUTIONAL AMENDMENT – IN SHORT
The question of constitutional and unconstitutional interference with the text of the Constitution is a subject that too many lawyers and law teachers/professors refuse to discuss or even can’t understand (not in the sense of “fully accepting” the doctrine of an unconstitutional constitutional amendment, but more in sense of denying its existence and refusing to discuss it), and politicians cannot think it. It is not a subject of an open and inclusive discussion within the profession. But it can be read and studied in the legal literature. In books written or edited by the greatest authorities and most esteemed legal scholars.
According to my personal belief, this doctrine is directly applicable to our constitutional order and legal identity. The legislator, so I claim, must not interfere in the constitutional text only and solely because it has made this choice. Even if it has done so according to a predetermined procedure for changing the text of the Constitution, as prescribed in the Constitution. This can’t be done legitimately and constitutionally merely because the legislator has succeeded in obtaining a two-thirds majority of Members of Parliament – National Assembly (such majority is required to amend or change the provisions of the Constitution, according to the text of the Constitution). There must be a convincing and factually sound justification for the adoption of a constitutional act/statute or an amendment that interferes with the content of the Constitution.
Act/statute, officially given the status of a constitutional act/statute, that directly affects the Constitution may not be adopted regardless of its content and the purpose (also motivation, goal) of its adoption. It is the alphabet of modern constitutionalism and the concept of constitutional democracy. It is also an element of the model of foundational constitutional democracy as defined in Slovenia by the Constitution (Articles 3 and 3a) and the side-effect, indirect effect of the decisions of Constitutional Court addressing the issues of constitutionality, separation of powers, constitutional legitimacy and the binding effect of the Constitutional Court decisions (see my first publication on the issue; A. Teršek: Sovereignty, People and Human Rights: A Contribution to the Understanding of Terms, Revus. Journal for Constitutional Theory and Philosophy of Law, No. 9/2009).
A constitutional act(statute or amendment which shows an obvious or provable intention to circumvent the content of a particular decision of the Constitutional Court by misusing the form of a constitutional act/amendment is not inviolable solely because it was formally adopted in the prescribed formal form and according to the procedure prescribed by the Constitution. The Constitutional Court may annul such an act as unconstitutional. If the national Constitutional Court fails to do so, the European Court of Human Rights has the privilege to do so, if the legal act of the constitutional rang contravenes the so-called “minimal standards” of democracy, freedom (liberty), rule of law or fundamental human rights and freedoms, settled down in the ECHR and ECtHR case-law.
The same argument applies if a particular legal issue is regulated by a constitutional act/amendment that contradicts the already existing content of the Constitution, the previous decisions of the Constitutional Court (not in all cases, but surely in some cases), or conflicts with the European Convention on Human Rights. More specifically, if its substance is contrary to the interpretation of the ECHR given by the ECtHR in its judgments.
Constitutional Court is therefore also responsible for the constitutional review of legal acts/statutes given the status of constitutional rang – constitutional acts/statutes or constitutional amendments. Slovenian Constitutional Court still denies the existence of the doctrine of an unconstitutional constitutional amendment and accepts the possibility of reviewing the constitutionality of a constitutional act or amendment only in the so-called formal sense: in terms of a formal assessment of whether such an act or amendment has been adopted in full accordance with the prescribed procedure.
MY DOCTRINAL POSITION
I strongly oppose such a position. I claim the Constitutional Court is also competent and responsible for the substantive (not only formal) assessment of the acts of constitutional rank and constitutional amendments in the following cases:
1. if the National Assembly only wishes to avoid the enforcement of a decision of the Constitutional Court by enacting the constitutional act or amendment which contravenes the substance of the Constitutional Court decision;
2. if the National Assembly legally regulates a particular legal question by enacting a constitutional act, even though such legal question must be regulated by an ordinary law (this may exceptionally be replaced by a decision of the Constitutional Court);
3. if there is a will of the National Assembly to subsequently change the foundations of the constitutional order by enacting a constitutional act or if such an act would mean encroaching on rights and freedoms already safeguarded by the provisions of the Constitution or by the Constitutional Court judgments;
4. if an internal imbalance or contradiction in the Constitution is created by a constitutional act enacted by the National Assembly – the legislature;
5. if the constitutional act/amendment invoked by the National Assembly lowers the level of protection of fundamental rights and freedoms, or basic constitutional principles of democracy, freedom or rule of law, already established with the so-called “Strasbourg minimal standards”; or with other words if the constitutional act or amendment lowers the legal protection of a particular fundamental right or freedom below the level established by the judgments of the ECtHR.
Opinions (from politicians, professors of law, and other lawyers) that the sole “form” of a constitutional act/amendment could – legitimately – be used to circumvent the decisions of Constitutional Court and the already established constitutional rules and principles (values), indicate a lack of understanding of constitutional law, legal ignorance, modest awareness of the law and a low political and legal culture. It reflects the inability to think of modern constitutionalism and constitutional democracy as such.
In law and for the law, and especially in constitutional law and constitutionalism, not only words and sentences are important. Absolutely not. The purpose, motivation, aim and purpose behind a particular legal norm -act, article or legal provision- which consists of words and sentences, have the same, often even greater importance (for example, when deciding on the constitutionality of a particular referendum initiative Constitutional Court may forbid the referendum on the basis of the unconstitutionality of its substance, the motivation behind it, or its goal; Slovenian Constitutional Court has already forbidden some of such referendum initiatives, explicitly stating there can be no referendum voting on the constitutional rights and freedoms, and especially not if the referendum would mean the majority of the citizens voting on the rights or freedoms of the particular minority of the citizens). These elements have specific content. However, this content is legally important and often even decisive. The content of these elements must always be assessed in legal – and constitutional – terms. Those lawyers and law professors, or even judges of the constitutional courts, who do not understand this, do not understand what is at stake – in the law, in the rule of law and in constitutionalism. Slovenian Constitutional Court has – on several occasions – denied the existence and usefulness of the doctrine of an unconstitutional constitutional amendment without a substantiated constitutional argument, without a single paragraph of argumentation: with the pure “argument of power.”
Thank you for sending me your papers. I have read both with great interest, especially the one on constitutional amendments. You make a strong case for the unconstitutional constitutional amendments doctrine, though I still believe that this doctrine is problematic and should not be applied, with perhaps a few exceptions, though only rarely, if ever.
Justice Ddr. Klemen Jaklič, partly dissenting and partly concurring opinion to the Constitutional Court of the Republic of Slovenia decision No. U-I-32/15.
On Unconstitutional Constitutional Amendment Doctrine
“16. I voted against the fifth point of the operative part because the statement of the majority in this part is too sparse (it contains two very short paragraphs in total) and without serious substantive arguments. This is in response to the proponent’s assertions that the National Assembly should respect the will of the people in the referendum on the majority voting system of 1996, which was later confirmed by the Constitutional Court decision but the National Assembly surpassed the Constitutional Court decision with a constitutional amendment enacting the system of proportional representation, with the decisive influence of the voters on the distribution of parliamentary seats.
17. The majority decision responds to this argument with only two sentences, namely: “[t] he Constitution and the statutes do not determine the competence of the Constitutional Court for assessing the mutual conformity of constitutional provisions. Since the Constitutional Court is not competent to assess the mutual compatibility of constitutional provisions, it rejected the request for an assessment of the constitutionality of Article 80(5) (point 5 of the operative part). “
18. Such a flat position does not take into account the fact that in comparative constitutional practice as well as in the professional and scientific literature of recent decades the doctrine of the s. c. unconstitutional constitutional amendment has not been taken into account. Scientific articles of the highest level in international constitutional law and scientific monographs published by leading publishing houses of the world have written about it and about the conditions for the constitutional annulment of the constitutional amendment, and Constitutional and Supreme Courts all over the world have developed very interesting versions of this doctrine. When the special conditions are met, it allows and even demands the constitutional annulment of constitutional amendments as incompatible with the particular constitutional value, which is more fundamental. Such a competence, justified by the very nature of the matter, does not, of course, require such competence to be explicitly written in the Constitution and the statutes, since this competence derives from the understanding of the essence of the Constitution as the supreme legal act protecting the fundamental values of constitutional democracy.
19 Since the present case raises precisely some of the questions that also arise in the comparative literature and constitutional jurisprudence mentioned above, this two-sentence justification of point 5 of the tenor was so flat for me that I felt obliged to vote against such overly light approaches to first-class constitutional issues.”
Footnotes: Prof. Richard Albert describes this process like this: »If we look carefully around the world, we cannot deny as a descriptive matter that there are limits to the amendment power. In countries far and near – from Argentina to Austria, Belize to Brazil, Greece to Hungary, India to Italy, Peru to Portugal, South Africa to Switzerland, Taiwan to Turkey – high courts have with accelerating frequency adopted the doctrine of unconstitutional constitutional amendment, authorizing themselves (sometimes in defiance of the constitutional text) to strike down an amendment for violating their reading of the constitution, whether on procedural or substantive grounds. What has largely prompted courts to adopt this doctrine is the defense of democracy. Courts have invoked the doctrine to protect what they regard as the fundamental values of their constitutional democracy. [F]or example,[i]n the Czech Republic, the Constitutional Court annulled an amendment that it determined would have changed “the essential requirements for a democratic state governed by the rule of law.”« R. Albert, »How a Court Becomes Supreme? Defending the Constitution from Unconstitutional Amendments«, glej naslednjo opombo.  See, among others, R. Albert, M. Nakashidze, T. Olclay, »The Formalist Resistance to Unconstitutional Constitutional Amendments«, Hastings Law Journal, no. 70, 2019 (sprejeto za objavo); R. Albert, »Constitutional Amendment and Dismemberment«, Yale Journal of International Law 43(1), 2018; R. Albert, »How a Court Becomes Supreme? Defending the Constitution from Unconstitutional Amendments«, Maryland Law Review 77(1), 2017; R. Albert, »Four Unconstitutional Constitutions and their Democratic Foundations«, Cornell International Law Journal 50(2), 2017, pgs. 169–198; R. Dixon in D. Landau, »Transnational Constitutionalism and a Limited Doctrine of Unconstitutional Constitutional Amendment«, International Journal of Constitutional Law (ICON), no. 13(3), 2016, pgs. 606–638; R. Passchier in M Stremler, »Unconstitutional Constitutional Amendments in European Union Law: Considering the Existance of Substantive Constraints on Treaty Revision«, Cambridge Journal of International and Comparative Law, no. 5(2), 2016; R. Albert, »The Theory and Doctrine of Unconstitutional Constitutional Amendment in Canada«, Queen’s Law Journal, no. 41(1), 2015; C. Dupré, »The Unconstitutional Constitution: A Timely Concept«, v A. von Bogdandy in P. Sonnevend (ur.), Constitutional Crisis in the European Constitutional Area, Nomos 2015, pgs. 364–383; V. Jackson, »Unconstitutional Constitutional Amendments: A Window into Constitutional Theory and Transnational Constitutionalism«, In M. Bäuerle in P. Dann, Demokratie-Perspectiven: Festschrift für Brun-Otto Bryde zum 70. Geburtstag, Michael & Astrid Wallrabenstein 2013; Y. Roznai, »Unconstitutional Constitutional Amendments: The Migration and Success of a Constitutional Idea«, The American Journal of Comparative Law, no. 61(3), 2013, pgs. 657–720; G. Halmai, »Unconstitutional Constitutional Amendments: Constitutional Courts as Guardians of the Constitution«, Constellations, no. 19(2), 2012, pgs. 182–203; A. Kavanagh, »Unconstitutional Constitutional Amendments from Irish Free State to Irish Republic«, Oxford Legal Studies, no. 10/23, 2013, and v E. Carolan, The Constitution of Ireland: Perspective and Prospects, Bloomsbury 2012, pgs. 331–354; Y. Roznai in S. Yolcu, »An Unconstitutional Constitutional Amendment – The Turkish Perspective: A Comment on the Turkish Constitutional Court’s Headscarf Decision«, International Journal of Constitutional Law (ICON), no. 10(1), 2012, pgs. 175–207; A. Barak, »Unconstitutional Constitutional Amendments«, Israel Law Review, no. 44(3), 2011, pgs. 321–341; S. Issacharoff, »Constitutional Courts as Democratic Hedging«, Goergetown Law Journal, št. 99, 2011; R. Albert, »Nonconstitutional amendments«, Canadian Journal of Law & Jurisprudence, no. 22(1), 2009, pgs. 5–47; K Gözler, Judicial Review of Constitutional Amendments, Ekin 2008; G. Jacobsohn, »An Unconstitutional Constitution? A Comparative Perspective« International Journal of Constitutional Law (ICON), no. 4(3), 2006, pgs. 460-487; I. Gomez, »Declaring Unconstitutional a Constitutional Amendment: The Argentine Judiciary Forges Ahead«, University of Miami Inter-American Law Review, no. 31(1), 2002, pgs. 93–119; P. Jambrek in K. Jaklič, »Contribution to the Opinion of the Venice Commission on the Constitutional Amendments Concerning Legislative Elections in Slovenia«, European Commission for Democracy Through Law (Venice Commission), Strasbourg, 2000; R. O’Connell, »Guardians of the Constitution: Unconstitutional Constitutional Norms«, Journal of Civil Liberties, no. 4(48), 1999, pgs. 48–75; D. Kommers, The Constitutional Jurisprudence of the Federal Republic of Germany, Duke University Press, 1997, pgs. 38; G. Wright, »Could a Constitutional Amendment be Unconstitutional?«, Loyola Universty of Chicago Law Journal, no. 22(4), 1991, pgs. 741-764; J. Rosen, »Was the Flag Burning Amendment Unconstitutional?«, Yale Law Journal, no. 100(4), 1990, pgs. 1073–1092.  For example Y. Roznai, Unconstitutional Constitutional Amendments: The Limits of Amendment Powers, Oxford University Press, 2017.
(Translated by Andraž Teršek, for the esteemed prof. dr. Richard Albert)
(Note: my much longer and more complexed article on the issue is currently under a pweer-reviw for the possible publication.)