Democratic erosion and the Unconstitutional Constitutional Amendments Doctrine

Democratic erosion and the Unconstitutional Constitutional Amendments Doctrine



all right thank you very much I'm very honored to be here in chess Thank You Justus Linares and the justices I mean thank you the control Court it's amazing conference and it just shows how much the people care about the control Court I have to admit when I arrived and I understood it I'm going to speak in front of 1500 people I was a bit panicked but now that I realize it's only 1000 people I'm much more relaxed so I will talk about the doctrine the unconstitutional control amendments doctrine or the Colombian version of constitutional replacement doctrine but will focus on its weaknesses precisely following what the distinguished professors have mentioned the era of populism and democratic decay and the paper basically is divided into three parts I'll talk about the utilities and advantages of the doctrine and its ability to protect democracy but then I'll focus on the weaknesses doing error of the Makati erosion and finally I will try to maybe suggest three routes to overcome these challenges so I'll begin with precisely the words of Professor Ginsberg in recent years the world is experiencing the crisis of constitutional democracies we see populist leaders abusing constitutional mechanisms in order to erode the democratic order now this erosion is the process of incremental but ultimately substantial decay in various principles of the democratic order such as separation of powers fundamental rights competitive elections the rule of law Tom in his book mentioned Hungary Poland Venezuela as examples for such state and this is a fantastic book I must add now while authoritarian leaders in the past were assumed to be hostile towards constitutions and constitutionalism because they perceive them as limiting the powers nowadays the populist regime's use constitutional law precisely to advance their goals and this has been described by david landau as abusive constitutionalism and the central mechanism at the service of those leaders is formal constitutional amendments especially with relative flexible amendment procedures such as Hungary now as constitutional amendments are being used or abused as a tool by populist leaders the doctrine excuse me if I say the doctrine instead of the document of unconstitutional control amendments every time the doctrine according to which the power to amend the Constitution does not include the power to destroy the Constitution and replace it with a new one can prima facie function as a useful tool to protect democracy and we can talk about some examples I mean in various countries around the world the doctrine has proven to be indeed a useful stop sign or a speed bump against constitutional amendments aiming to erode the democratic order India during Indira Gandhi's emergency period believes very recently Taiwan Uganda just few months ago the Ugandan Constitutional Court invalidated constitutional amendments that were attempting to extend the term of the of the legislators themselves from five to seven years using the Indian basic structure doctrine so we can see that courts can indeed play an important role in protecting democracy and and I agree I think that the third consecutive term the Colombian case is indeed a useful example but is it enough is the doctrine perfect I think that not I think that the doctrine suffers from several inherent limits or weaknesses in an era of democratic erosion that we are now witnessing the first one deals with incrementalism nowadays as Professor Ginsburg stated Democratic breakdowns occur not by an immediate break a sudden suspension or destruction of the Constitution a coup d'etat but by elected governments using abusing and subverting the democratic institutions themselves one of the prime elements of this Democratic erosion is its incremental ISM it is typically an an aggregative process made up of many small measures that are rarely frontal assaults on the basic principles of the control order if you look at each one of them separately however they have this aggregated effect where the the whole is greater than the sum of its parts if you like and I think that this is why is very difficult to spot Democratic erosion after all there are no tanks in the streets and I think this is the main reason why the doctrine and its utility is limited the doctrine aims to prevent revolutionary constitutional amendments it aims to preserve the core identity of the constitutional order and accordingly it allows for an incremental gradual crumbling of the constitutional order or its basic principles therefore it is almost useless against the Michalek erosion the assassins of democracy used legal startled and gradual means to kill it and the doctrine helplessly stand aside witnessing this assassination the second problem is constitutional replacement the doctrine rests on a distinction between original constituent power and derived constituent power a more limited amendment power a secondary power that is derived from the Constitution itself and the doctrine limits only the amendment power it does not limit and conceptually cannot limit the original constituent power which is considered to be an extra constitutional power what this means is that now leaders have another tool to circumvent the doctrine by completely replacing replacing the Constitution with the new one take for example Hungary again when Viktor Orban won the elections and God the 2/3 majority needed to amend the Constitution it is not simply amend the Constitution it completely replaced the Constitution with a new fundamental law a new constitution overcomes the doctrine and the third inherent problem is court packing or court capturing the doctrine shifts the locus of constitutional change from those political authorities to the judiciary and the problem is that in the era of populism politicians realize that the ultimate decision regarding control change rests with the judges then courts are threatened or packed in ways that make the doctrine useless just think of anis whele to ki-moon Giri in Poland the ability to pack the court and control it severely undermines the utility of the doctrine but it's even worse as we've just heard from Professor Ginsberg not only that the doctrine is useless but it is even worse it is a powerful tool that can override constitutional provisions and with the captured Court this powerful judicial mechanism is now at the hands of the political leaders providing them a powerful tool to perpetuate their stay in power and you can consider recent examples from Nicaragua Bolivia and as we've heard Honduras where courts held that the presidential term limits are themselves unconstitutional for violating basic constitutional rights such as the right to be elected and the right to vote so the doctrine provides leaders a legal tool to override constitutional limitations on the powers so not only that the doctrine may fail to block changes that undermine the democratic order but it may even promote them which brings me to the final and third part of the presentation so what do we do and I would like to open the discussion on three possible routes for overcoming at these challenges first I would like to propose an aggregated judicial review of amendments even if each of the control amendments on its own does not substitute the Constitution the incremental aggregation of events produces a cumulative effect where again the whole is greater than the sum of its parts leading eventually to a wide risk to the constitutional order and the time has come I think to consider an aggregated form of judicial review of amendments in other words we may ask ourselves why the court should not take into consideration all prior constitutional changes in addition to the single amendment it is now reviewing in other words what is needed is an aggregated doctrine that would allow courts to review a specific amendment but together with the surrounding legal environment with which it interacts and I think I have time yeah I have time so I think that the Colombian case on the third on the third term does precisely this if you think about it like a mathematician the court allows a second term let's say plus four years the court reviews it says it is perfectly fine no problem this is not a replacement but then we have another attempt to amend the Constitution another plus four if we use the same math it is fine it is not a replacement another term is not a replacement but no the court whether it does it knowingly or not uses this aggregated doctrine saying that a third term in an aggregated manner would amount to a replacement why because it would empty the the content of term limit the second proposal is that we need to reconsider the automatic immunity we give to constitutional replacement from judicial review we need to develop a theory about restrictions on constitutional replacement that may be enforced by judicial review such as the African Constitutional Court certification case one way to do it would be to define a proper or to try to define what is a proper or a legitimate exercise of considering power something that Vicki – professor Vicki Jackson and Carlos Bernal recently suggested and the third proposal is the following I think that a special attention should be giving two amendments affecting judicial independence and here I have to admit I've changed my mind I'm not that old but I already changed my mind in my book I claimed that Court should be especially restrained when dealing with consider amendments that deal with the judiciary why because this would seem like a misuse of the doctrine in order to to protect their own self-interest so I said quote should be restrained I'm starting to reconsider this I think and I ask you to reconsider this perhaps in a democratic erosion context quote should be especially strict in protecting their independence precisely in order to protect the constitutional order it's entirely because capturing the code would be the first move in this we can say battle against democracy so if we protect the court and we protected in dependency of the court then it would be easier for the court to protect other constitutional principles and I think that recent examples from India in Bangladesh may be useful in this respect that I'm happy to elaborate on that in the discussion so I would like to conclude I'm a big supporter of the doctrine I think that the doctrine rests on a very solid theoretical ground the amendment power is not an absolute omnipotent power no it is a delegated power given to a constitutional organ with a specific task to amend the Constitution this is a fiduciary power and it acts as Trust it acts as trustee of the people nonetheless I think we need to reconsider the doctrine and its utility I think we need to reconsider some basic assumptions instead of using the doctrine in order to protect against revolutionary constitutional amendments that would establish an authoritarian regime we need to adapt the doctrine to existing constitutional practices that actually utilize incremental and subtle amendments to gain control of the judiciary and eventually to dismantle the democratic order muchas gracias [Applause]

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