Legisprudence Limitations on Constitutional Amendments? Reflections on The Czech Constitutional Court's Declaration of Unconstitutional Constitutional Act

8(1) ICL Journal (Vienna Journal on International Constitutional Law) 29-57 (2014)

29 Pages Posted: 12 Apr 2014

See all articles by Yaniv Roznai

Yaniv Roznai

Interdisciplinary Center (IDC) Herzliya - Radzyner School of Law

Date Written: April 10, 2014

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 un-constitutional 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.

Keywords: unconstitutional constitutional amendments, judicial review, limitations on constitutional amendment power, rule of law, individual legislation, retroactive legislation

Suggested Citation

Roznai, Yaniv, Legisprudence Limitations on Constitutional Amendments? Reflections on The Czech Constitutional Court's Declaration of Unconstitutional Constitutional Act (April 10, 2014). 8(1) ICL Journal (Vienna Journal on International Constitutional Law) 29-57 (2014). Available at SSRN: https://ssrn.com/abstract=2423267

Yaniv Roznai (Contact Author)

Interdisciplinary Center (IDC) Herzliya - Radzyner School of Law ( email )

P.O. Box 167
Herzliya, 46150
Israel

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