Constitutional Change

by Thomas Fleiner. On Sunday September 24 2017, the Swiss voters decided on the following issues. The sovereign (majority of the cantons and the voters) accepted a new article 104 a concerning enough foodstuff supply with 78.7% and rejected a new Constitutional provision for a new value added tax with 52%. This concerns Article 130 par 3ter and quater (including the transitional provisions 196 par 6 and 7 linked to Article 130 of the tax amendment) tax, which supports the institution for old age survivors. The majority of the voters did also reject the legislation concerning the retirement arrangement 2020 with 52.7%. The turnaround was 46.7%. Almost all German-speaking cantons rejected a new added-value tax. Of the German-speaking cantons only Bale-town, Bern and Zurich accepted it. The French speaking cantons and the Ticino accepted it.
by Duncan Okubasu, Lecturer at Kabarak University School of Law and an Advocates of the High Court of Kenya Few minutes after Kenya’s Supreme Court (SC) nullified President Uhuru’s re-election, his lawyer- Ahmednasir Abdullahi – in a press conference described the decision as political, having nothing to do with the law. Indeed, the demand of the Constitution of Kenya 2010 that a presidential election must be determined within 14 days leaves SC judges with the constrained option of making an ‘intuitive’ decision and then following it with reasons at a later time. In the Raila v Kenyatta Case (2017), the SC completed hearing the dispute on 29 August 2017 and was expected to and did provide its ‘decision’ on 1 September 2017. It indicated in so doing that it would deliver a reasoned judgment within 21 days.
by Carlos Arturo Villagrán Sandoval, PhD Candidate at Melbourne Law School. Last week, on April 3rd 2017, the Permanent Council of the Organization of American States held a meeting in order to consider the recent events in Venezuela. They approved by consensus the following resolution: ‘[t]he decisions of the Supreme Court of Venezuela to suspend the powers of the National Assembly and to arrogate them to itself are inconsistent with democratic practice and constitute an alteration of the constitutional order of the Bolivarian Republic of Venezuela.’ The actions of the Venezuelan Supreme Court are the latest in a series of events that amount together to a constitutional disruption within the Latin American region.
On the occasion of the publication of the book X. Contiades/A. Fotiadou (Eds), Participatory Constitutional Change. The People as Amenders of the Constitution, (Routledge 2017), The Centre for European Constitutional Law – Themistocles and Dimitris Tsatsos Foundation organizes a public debate in Athens, Greece on the issue: Popular Participation in Constitutional Amendment
by Thomas Fleiner. On Sunday February 12 2017, the Swiss sovereign (Article 195 as well as according to Article 142 par two of the Constitution) decided on two amendments of the constitution proposed by the Parliament with a turnout of 46 to 47%%. The constitutional amendment on third generation foreigners living in Switzerland has been approved with 60.4% yes and 39.6%% no. 17 cantons voted yes and only six cantons voted no. The Swiss sovereign approved the amendment on the financial support for the roads with 61.9% yes and only 38.1% no. All cantons did approve this constitutional amendment.
by Carlos Arturo Villagrán Sandoval, PhD Candidate, Melbourne Law School. In the last two years, a series of reform proposals have been debated regarding the constitutional reform of Guatemala’s judiciary. These constitutional reform proposals, which include a major overhaul of the election and composition of the Constitutional Court, the creation of a judicial supervisory organ and the recognition of indigenous justice, have been promoted by a foreign actor, the Comisión International Contra la Impunidad en Guatemala or the International Commission against Impunity in Guatemala (CICIG).
by Tarik Olcay, PhD Candidate, School of Law, University of Glasgow. The uninformed observer could be forgiven for thinking that no such thing as an unconstitutional constitutional amendment exists. This concept, or in other words, the question of constitutionality of constitutional amendments, is a contentious one. It immediately calls for a clarification, a convincing definition of the constitution, and of what it means to be constitutional.
by Ian Cram, School of Law, Leeds University. Sitting for the first time as a full 11 member panel, the United Kingdom’s Supreme Court has handed down its ruling in the most significant constitutional law case in the UK for over a generation. The ruling has been eagerly anticipated both in the UK, Europe and beyond and touches upon a range of major constitutional issues that will have significant legal and political implications.

Latest Posts

Swiss votations on February 9, 2020

by Prof. Markus Kern / Fabian Schmid, University of Bern

On February 9, 2020, two proposals were up for decision by the Swiss electorate:
– the Popular Initiative claiming “more affordable homes” as well as
– a referendum concerning a ban on discrimination based on sexual orientation in criminal law
The Popular Initiative was rejected by 57.1% of the Swiss population and by all but 4½ of the cantons, whereas the amendment of criminal law was clearly accepted by a majority of 63.1% of the voters. Electoral turnout was at 41.7% resp. 40.9%.

Read More »

Illiberal constitutionalism 2 – constraints on public power

by Tímea Drinóczi, Professor, University of Pécs, Faculty of Law, Hungary

Illiberal states emerging in Europe, such as Hungary and Poland, are still constitutional democracies, which are shaped peacefully by populist politicians from a more substantial form of constitutional democracy that prioritizes (liberal) constitutional values through the use of populist style of governance, abusive constitutionalism, and autocratic legalism.[1] In our cases, the minimum requirements of a constitutional democracy, such as the rule of law, human rights, and democracy, have been defectively worded in a constitution, or poorly implemented or enforced.

Read More »