Legisprudence Limitations on Constitutional Amendments? Reflections on The Czech Constitutional Court’s Declaration of Unconstitutional Constitutional Act
Abstract Can a constitutional norm be unconstitutional? This idea seems, at first sight as a self-contradiction. Unconstitutionality is commonly referred to those ordinary laws, inferior to the constitution, which violate it. Constitutional norms, in contrast, carry an equal normative status as the constitution itself and other constitutional provisions. The question of unconstitutional constitutional norms recently arose in the Czech Republic. On 10 September 2009, the Czech Constitutional Court declared Constitutional Act no 195/2009 Coll, on Shortening the Fifth Term of Office of the Chamber of Deputies to be unconstitutional. The Czech Constitutional Court held that the constitutional act was an individual, specific decision and retroactive, thus violating the unamendability provision (Art 9(2)) in the Constitution, which prohibits amendments to the essential requirement for a democratic state governed by the rule of law. This article analyses the Czech Constitutional Court’s decision in a broader comparative and theoretical perspective and focuses, mainly, on four issues: first, the Czech Constitutional Court’s authority to substantively review constitutional norms; second, the appropriate standard of review when exercising judicial review of constitutional norms; third, the ‘individual, specific’ character of the constitutional act; and fourth, its alleged retroactive application. The article claims that while the Czech Constitutional Court was generally correct in claiming an authority to substantively review even constitutional norms, this was not the appropriate case in which to annul a constitutional act.
Balancing Security and Liberty in Germany
Scholarly discourse over America’s national security policy frequently invites comparison with Germany’s policy. Interest in Germany’s national security jurisprudence arises because, like the United States, Germany is a constitutional democracy. Yet, in contrast to the United States, Germany’s historical encounters with violent authoritarian, anti-democratic, and terrorist movements have endowed it with a wealth of constitutional experience in balancing security and liberty. The first of these historical encounters – with National Socialism – provided the legacy against which Germany’s post-World War II constitutional order is fundamentally defined. The second encounter – with leftist domestic radicalism in the 1970s and 1980s – required the maturing German democracy to react to domestic terrorism. The third encounter – the security threat posed in the post-9/11 world by global fundamentalist terrorism – reveals Germany’s still unfolding response to global fundamentalist terrorism. Throughout the whole of its sixty-year existence, the Federal Republic of Germany has been engaged in a constitutional balancing of security and liberty in response to, or anticipation of, actual authoritarian and terrorist threats, which the United States, at least prior to 2001, had been fortunate to avoid. To scholars such as Bruce Ackerman, Germany seems a fitting candidate to teach the United States lessons from its experience with the struggle to honor constitutional commitments to liberty while maintaining national security in the face of terrorist threats. This essay answers Ackerman’s comparative law summons by providing a brief survey of the decades-long struggle of German jurisprudence to balance security and liberty. The most noteworthy feature of this jurisprudence is the prominent role played by the Bundesverfassungsgericht (Federal Constitutional Court, hereinafter referred to as Constitutional Court, or Court) and its explicit use of proportionality and balancing analyses to resolve these cases. One consequence of the latter phenomenon that is sure to interest hawks in America’s so-called “war on terror” is the Court’s acknowledgment that national security is a public, constitutional interest of the highest order. American progressives, on the other hand, will take hope from the fact that the Court’s proportionality and balancing praxis has meant that national security is regarded as only one among many competing constitutional values, including human dignity, privacy, and individual self-determination. Notwithstanding the high importance that German jurisprudence attributes to national security, the Constitutional Court never has treated it as an absolute value that must be secured at any cost. The practical consequence of the Constitutional Court’s balancing approach to maintain both security and liberty has been a shifting jurisprudence, a fact that is bound to buoy and bother American conservatives and progressives in equal measure. There is something in the Court’s cases for both camps. Before 9/11, the Court deferred to the legislature’s attempts at promoting security. This inclination, however, changed dramatically in the post-9/11 period. In a string of cases the Court has consistently invalidated national security legislation for failing to adequately take account of constitutionally protected liberty interests. After providing a sketch of the German jurisprudence I will offer a few brief observations that, with additional research, might help explain the Court’s recent change in direction – and more fully illuminate the lessons Germany’s national security jurisprudence has to offer.
La inseguridad jurídica en normas de contratación estatal
It is established by different studies that the issue of government procurement has been marred by several factors, the test objective to publicize these factors, we take as starting point the constant conflict between the branches of government to try and organize this subject; will collect and analyze diverse regulatory and case material in order to achieve evidence and demonstrate the different concepts of constant change that produces excessive regulation of the subject procurement and is in turn causing rapid changes that result in legal uncertainty for our law on the Contract Status.