It sets limits to what the legal system, however it is structured, can do even through constitutional provisions. Such an argument should be rejected. The general understanding is that international law cannot itself realize supremacy at the domestic level. The headscarf issue in Turkey is contentious. The act authorizing torture even if a constitutional act would be delegitimized and would not obtain international legal recognition. Recent cases before the European Court of Human Rights ECtHR dealing with the controversial issue of religious dress add an interesting angle and important support for the Turkish headscarf ban in universities. Cannon n 58 28—9.

It carries dual features of both constituent and constituted power. A revision or a reform can indeed make dramatic changes, but they still cannot destroy the existing constitutional order and replace it with one that denies these basic values. From this perspective, supra-constitutional limits on the constitutional amendment powers do exist. In an important and controversial decision, the Constitutional Court ruled that the amendments were unconstitutional because they infringed on the constitutional provision mandating a secular state. How does the theory of delegation manage to integrate the formal and substantive theories? Take, for example, the constitutional crisis that occurred in Nicaragua in — Constitutional amendments shall be examined and verified only with regard to their form….

Recent cases before the European Court of Human Rights ECtHR dealing with the controversial issue of religious dress add an interesting angle and important support for the Turkish headscarf ban in universities.

I use amendments to describe any formal changes to the constitution, whether major or minor. The nexus between ideas of natural law and international law is well known,81 especially with regard to international human rights law.

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The vertical origlnaire of powers between the primary and secondary constituent powers means that the amending authority is independent within its margins as long as it acts within its authority.

From the perspective of international law, each and every domestic regulation, including regulations of constitutional rank, must respect the priority of binding international norms.

For instance, it has been argued that the Indian basic structure doctrine of implied limitations on the amendment power is linked to the concepts of natural law and natural rights. Give yourself the best chance by enlisting one of our expert editors to provide the critical feedback you need dérové write the perfect admissions essay.


dissertation pouvoir constituant originaire et dérivé

Thus, the constituent power is divided conforming to a hierarchy of powers — primary and secondary — governed by the principle lex superior derogat inferiori; the constitutional rule issued by a higher hierarchical authority prevails over that issued by a lower hierarchical authority.

At least when it comes to unamendable provisions, judicial review of amendments seems to be a similar intellectual operation as ordinary judicial dérvié it is an examination of the compliance of a given legal standard to a superior standard.

Inthe U. It places the sceptre over a free people in the hands of dead men, and the only office left to the people is to build thrones out of the stones of their sepulchres.

dissertation pouvoir constituant originaire et dérivé

The Constitutional Court explained that secularism had acquired constitutional status by reason of the historical experience of the country and the particularities of Islam compared with other religions; that secularism was an essential condition for democracy; and that it acted as a guarantor of freedom of religion and of equality before the law.

Dissertaton Secondary Constituent Power 15 1. JCB Mohr For a pouovir analysis of the doctrine see S Krishnaswamy, Democracy constitaunt Constitutionalism in India: The Court noted that in its decision of March 7,47 an arrangement allowing the wearing of headscarves for religious beliefs was found unconstitutional with respect to the rights and freedoms of others, the instrumentation of religion, and public order.

Dicey, Constitutional Revision, 11 L. As a matter of practice, the answer is positive.

At the outset, it is important to admit that from a purely practical point of view, in order to avoid the double amendment procedure tactic, a clever constitution- maker would draft self-entrenched unamendable provisions, i.

From the theory of delegation, it can be argued that in those numerous and limited cases in which constitutions allow for their total revision, this authorisation is an explicit permissibility given to the delegated amending authority to revise the entire document.

Primary and Secondary Constituent Powers 21 D. In the American context, Bruce Ackerman claimed that he would accept an amendment to the American Constitution repealing the First Amendment and establishing Christianity as state religion as part of the Constitution. Indeed, the Indian basic structure doctrine is one of the most significant examples for judicial activism.


However, this review is limited to their form: Thus, he proposed a certain procedure for partial change and another more complex for a total change. The law came into force with its publication in the Official Gazette No. Besides, from an international law perspective, is it not better to have an unamendable provision which would protect core principles than not having any protection whatsoever? I use the term unamendability to describe the resistence of constitutional subjects provisions, principles or institutions to their amendment.

Identifying the amendment power as a delegated authority is the first step in understanding its limited scope.


The central theme of the theory of unamendability, as advanced in this article, is strongly constitutionalist; it defends a fairly broad and robust concept of limitations to the amendment power, pouoir includes both explicit and implicit substantive limitations. The Court referred to other constitutional provisions from which one can understand the constitutional principle of secularism.

Then there were the terrible experiences before, in and after the Second World War, the unheard-of cruelties toward men by totalitarian regimes, the abuse of law for purposes of injustice, torture and extermination, total war, the appearance of nuclear weapons, the bitter struggle in a world torn by an ideological abyss. For him, constituent power can be legitimately reclaimed at any time. In a similar vein, it appears that the main issue with regards to unamendable provisions is their effectiveness.

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Therefore, in terms of dress, when individuals utilize their right to higher education, article 1 of the amendments would prevent state organs and administrative authorities from imposing a restriction upon utilization of this right. True, in the case of interpretation, it would be open to another court to choose a different interpretation in the future. Craig and Richard Rawlings eds.

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