Report on the Expert meeting on
National Constitutions and Globalisation
Amending the (Dutch) Constitution?
12 March 2010
CAOP (Albeda zaal)
Lange Voorhout 9, The Hague
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1. Introduction and Background
On Friday 12 March 2010 HiiL organised an expert meeting on the theme National
Constitutions and Globalisation. The topic relates directly to HiiL’s research theme
Transnational Constitutionality. This particular meeting was held in the concrete context
of a possible amendment of the Dutch Constitution, and with a view to contributing
insights to the work of the State Commission for Review of the Constitution
(Staatscommissie Herziening Grondwet) which, at the request of the Dutch Government,
is presently drafting a report on the desirability of amending the Dutch Constitution.
The discussions focused on two related themes - both within the context of globalisation:
•
The role and function a constitution as a document that creates and supports a sense
of ‘nationhood’.
•
The role and function of a constitution in the relationship between national and international
law and in the relationship between national legal orders.
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2. Summary of the Proceedings
The meeting was opened with words of welcome by Sam Muller Director of HiiL followed by
introductory remarks from Judge Wilhelmina Thomassen, a member of the Dutch Supreme Court
(Hoge Raad) and Chair of the State Commission for Review of the Constitution. Subsequently,
the participants benefitted from a series of expert presentations engaged in a lively debate after
each of these presentations. While the richness of the speeches and debate could not be fully
captured in the present report, the presentations as well as the main points that surfaced in the
discussion are summarized below.
2.1. Dr. Chaihark Hahm: The Relationship between a Constitution and its ‘People’
Dr. Chaihark Hahm’s contribution launched the discussion with observations about the relationship
between constitutions and the peoples behind them or, perhaps, the peoples they constitute.
Hahm, who received his legal education in South Korea and in the United States, explained that
previous his research focused on constitutional discourses of pre-modern/pre-democratic East
Asian societies, and the current democratic constitutional developments in South Korea.
He explained why from a Korean perspective the question regarding the identity of ‘We, the People
of Korea’ was particularly pertinent, as ‘the People’ as a constitutional agent had to be
differentiated from an ethnic, cultural, or linguistic identity in order fully to appreciate the novelty
of democratic constitutionalism in Korean history. He also emphasised, however, that the question,
“Who are the ‘people’?” was important in the Western (US and European) context as well. Recent
debates on popular, imposed, and European constitutionalism are all premised on the crucial
importance of ‘the people’.
Hahm referred to Carl Schmitt, Hannah Arendt, and Bruce Ackerman, as prominent theorists who
viewed the constitution as a fundamental law given by ‘the people’ onto itself. They all
presupposed a pre-constitutional ‘self’ that existed before it and created it. Hahm questioned this
pre-supposition. By interrogating the identity of this ‘self’, as represented in the words ‘We the
People’, he showed the difficulty of assuming a pre-defined, a-historical constitutional agent.
A better approach, Hahm stated, would be to take them as real historical people. The ‘people’
should not be regarded as pre-given and self-sufficient, but rather as influenced by external
factors; not as stable but rather mutable and negotiable. The people do not exist outside the
historical realm, intervening occasionally to ‘reboot history’. They come into being in the process of
making the constitution.
As such, the genesis of a ‘people,’ Hahm suggested, is most clearly visible in the constitutionmaking process. The constitution and the people were in a mutually reflexive relationship.
Although the constitution is ordained and established by the people, it is at the same time the
constitution that defines the people and gives them an identity. Thus, it would not be justified to
hold an almost theological approach, whereby the ‘people’ is seen as an all-powerful and
everlasting being. Quite to the contrary, the ‘people’ is always embedded in, and formed and
recreated throughout, history.
Based on these observations, Hahm suggested that three dimensions of the people’s identity
formation require further exploration. Firstly, history. In many instances, constitution-making
moments signify attempts to make a fresh start, create a distance from the immediate past.
Thus, pronouncing judgment on the past is the negative aspect of relating to history.
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Yet, there is also a positive way of dealing with history--by identifying a “usable past” which can
provide legitimation and inspiration. Such understandings of the past that inform the new
beginning are often found in preambles which also mention values and ideals of the new polity.
The second dimension relates to the conclusion that the ‘people’ is never a self-contained
phenomenon. This means ‘externalities’ should be taken into consideration. According to Hahm,
the constitution-making process always included “negotiations” with certain ‘Others’, be they
internal or external. The people’s identity is formed via various forms of such negotiations.
The ‘other’ may be the source of constitutional borrowing or it may actively impose a constitution.
The response may range from cooperation to sabotage. The third dimension is the shifting
boundaries of membership. Questions of nationality, citizenship, and membership must be settled
in order to define a ‘people’. The key question here is who belongs to the ’people’ and who does
not. There is never a pre-given answer to this. Rather, it is found or invented through constitutionmaking.
Hahm emphasised that the aforementioned dimensions of people’s identity-formation are relevant
even after the constitution-making phase. The mutually engendering relationship between the
’people’ and the constitution is maintained in an ongoing process of identity-formation. Nowadays,
all nations are influenced by and struggle with issues related to globalization and supranational
lawmaking, which poses questions of ‘externality’. Every generation must decide on the national
narrative to tell the next generation, which raises issues of ‘history’. Many states are also facing
problems related to migration and new modes of affiliation, which call for a redefinition of
‘membership’ boundaries.
Hahm summed up his argument by reiterating that the relationship between a constitution and its
‘people’ was best described as an ongoing process of conversation and dialogue. Yet, this
presupposes a continuing constitutional discourse in the society. This may not necessarily require
revising the constitution, but at a minimum there has to be a political debate informed with
constitutional values and vocabulary.
2.2. Prof. Dr. Hans Lindahl: Comments on Chaihark Hahm’s Presentation
Prof. Hans Lindahl´s commentary focused on the relationship between the people and the
constitution, taking as a starting point some of the remarks made by Chaihark Hahm.
Lindahl structured his talk along the line of five steps.
Firstly, the paradoxical relationship between the constituent and the constitutional power:
A constituent power can only be such, that is can only constitute a legal order, if it succeeds in
presenting itself as a constituted power, that is as already subordinate to what it creates.
This paradox is closely linked to a fundamental problem in the use of the indexical ‘we’, a problem
referred to by the great French linguistic Émile Benveniste, namely, that “we” cannot say “we”;
someone has to say “we” on behalf of the “we”. Thus, unity is presupposed and at the same time
being brought about. Lindahl then exemplified this general remark by referring to the EU: The six
founding members of what is nowadays called EU claimed to act on behalf of the ‘we’ the peoples
of Europe, yet were not and by definition could not have been mandated to this effect, because it
is only by dint of their act that it becomes possible to legally establish who can mandate.
This paradoxical process is also effectual in the European Court of Justice’s landmark decisions
Van Gent en Loos and Costa / E.N.E.L.
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Secondly, Lindahl explained that what was at stake here was the problem of representation.
In order to originate a community someone has to claim to represent the original community.
Thus, foundation succeeds only if it can be pulled off as being a re-foundation. An image of the
past had to be presented that people could accept as pointing out the future. Again, using the EU
as an example, Lindahl referred to the European Court of Justice in order to show that judges can
be constituent powers.
Thirdly, in light of the points above Lindahl questioned the validity of the distinction between direct
and indirect democracy. Unity is always a represented unity, even in the case of ‘participatory’
forms of democracy. However, there were different ways of organising representation, which
include, say, referenda. This point becomes clearer if we bear in mind that Art. 50 of the Dutch
constitution actually contains two notions of ´people`, even though the word appears only once:
The people in the sense of the electorate (which is politically divided) and the people in the sense
of political unity.
Fourthly, Lindahl elaborated on the role of courts, which, in many ways, also constitutionalise and
represent the people. In this context, what is fascinating about Art. 50 of the Dutch constitution,
is that it stated that the States-General (Parliament) “shall represent the entire people of the
Netherlands”, i.e. represents the political unity of the people in the Netherlands, rather than
merely the electorate. The commentator posed the question whether this is also true for courts:
Don’t judges also represent the political unity, even if they are not elected? In his opinion, Art. 50
of the Dutch Constitution could be redrafted so as to read “The States-General, as well as the
administrative and judicial powers, together with all organs of citizen participation, represent the
entire people of the Netherlands”.
Fifthly, Lindahl addressed the prohibition of judicial (constitutional) review of Acts of Parliament
and treaties, stipulated in Art. 120 of the Dutch Constitution. One of the arguments for the
exclusion of judicial review is that judges, as non-elected actors, should stay out of the political
game. According to Lindhal, however, if there were indeed two meanings of ‘the people’ electorate and unity – judges, precisely because they are not elected, have an independent duty to
represent the people as a ‘whole’, as a ‘unity’. Their role should be to protect minorities, as part of
the political unity, against acts of government in which the government and parliament fall prey to
the well-known danger of a “tyranny of the majority” within the electorate. Accordingly, Lindahl
suggested that the prohibition of constitutional review contained in Art. 120 should be lifted
Discussion
Turning to the case of Dutch constitution, several specific issues were raised by the audience,
beginning with the question of the desirability of introducing a preamble, which is currently missing
from the Constitution. According to one view, preambles tended to be associated with
revolutionary constitutions, whereas the Dutch constitution had to be regarded as incremental one.
Accordingly, the question was raised whether there are good political reasons to include a
preamble now. Hahm responded that indeed, history taught us that preambles were most urgently
needed for constitutions drafted following dramatic events and that where no such dramatic
transition takes place there were room to question the need for introducing a preamble. At the
same time, it could be said that in a more general sense preambles were embody certain ideas,
values, and dreams and reflected the spirit of the constitution.
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Accordingly, when considering whether or not to include a preamble, the distinction between
revolutionary and historical constitutions may be less relevant than it seemed. Secondly, it was
argued that in our age of globalization the real problem had to do with democracy and national
identity as well as with the place of substantial values (human rights etc.) as part of the
constitutional identity. Emphasis was laid on the understanding of a constitution as attributed to
the people, disregarding whether the people were asked or interested in the process of
constitution-giving.
Regarding the formation of national identity, some participants argued that in the Dutch context
the assumption that the constitution played a significant role in forming and/or developing the
people’s identity was questionable. In the Netherlands, it was argued, the discourse on national
identity took place with hardly any reference to the constitution. A sense of community belonging
seemed to be more significant in this context than the content of the constitution. It was
suggested to consider a constitutional engineering in the direction of more constitutional values
which related to the Dutch identity, if, normatively speaking, it would be considered important for
the constitution to have a more central place in the Dutch culture and discourse. Yet another sociolegal question was whether a change in the content of the constitution could actually lead to a
change in the people’s perception thereof and on its impact on the Dutch society.
2.3. Prof. Dr. Dieter Grimm: The impact of internationalisation and globalisation
on national constitutions
Prof. Grimm commenced his presentation on the impact of internationalisation and globalisation on
national constitutions with introductory comments on the essence of modern constitutionalism.
According to Grimm, this essence is often seen in the submission of politics to law, in short:
in a legalisation of politics. Yet, this is not the full story. Legalisation of politics is an old,
constitutionalism a relatively new phenomenon. Different from older forms of legalisation of politics
the modern constitutions did not only modify a pre-existing right to rule in this or that respect,
but constituted legitimate rule in the first place. Grimm emphasised that the achievement of
constitutionalism is characterised by five elements:
1.
They are a set of legal rules;
2.
regulating the establishment and exercise of political power;
3.
in a comprehensive way, leaving no extra-constitutional public power;
4.
by way of using law of a higher rank, enjoying primacy over ordinary law;
5.
such law emanating from a source different from the rulers themselves (it might not really
be made by “the People” but nevertheless has to be attributed to them.
Not all constitutions that took force during the 19th and the 20th century met fully with this
description. Yet, this meant that, compared to the achievement of constitutionalism, they were
regarded as semi- or pseudo-constitutions. However, the existence of semi- or pseudoconstitutions that constitutionalism in the full sense of the notion is an ideal type in the Weberian
sense. It existed in history, and it continued to exist in our times.
Turning to the phenomenon of internationalisation, Grimm clarified that he uses this term as
denoting modern phenomena, i.e. the post WWII developments involving the increased transfer of
powers to international and supranational organisations. In the process of this transfer of powers,
the respective member states of these organisations laid down the rules for the exercise of power
at the international level. None of the legal statutes of international organisations, however, can be
said to be constitutional in the full sense described above.
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At the same time, however, the possibility for national constitutions to continue to function as they
did before has somewhat eroded. With reference to the five elements of constitutionalism
mentioned above, Grimm examined in what sense internationalisation affected national
constitutions.
As regards the first element - a set of legal rules - No change is to be seen. It also remains true
that the constitution regulates the establishment and exercise of political power, yet only insofar as
it is state power. On the other hand, other core elements of national constitutions have undergone
a serious change as a result of internationalisation, argued Grimm.
First of all, since the state could not any longer be considered the sole holder of all public power,
the national constitution had to regulate the exercise of public power in a comprehensive way.
The nation state lost its exclusive regulatory function as well as its exclusive execution of power
and had to share it with the international level and the external exercise of public power was
beyond the reach of national constitutions. Discussing the dimension of constitutionalism that
perceived constitutional law as the law of the highest rank, Grimm pointed out that primacy still
existed but only vis-à-vis state action. From the perspective of international law, that law claimed
primacy and therefore was not subjected to national constitutions. National constitutions
demonstrated a variety of attitudes to this question. For example, the Dutch version of monism
fully accepted the primacy international law, whereas the situation differed in Germany, even with
respect to European law. The German Federal Constitutional Court generally accepted primacy of
EC law over national law. However, certain boundaries were drawn. As regard the last element,
Grimm pointed out that it was quite clear that it was no longer the case that every act of public
authority was authorized by the people. Thus, national constitutions were not any longer able to
fulfil their claims in this respect.
Before concluding his contribution, Grimm asked what remained of national constitutions taking
into consideration the above outlined effects of internationalisation. The answer to this would
depend on the question how many (and which) international organisations the respective state
belonged to. In general, the greater a state integrated into the international legal order, the less
remained of its national constitution. Nevertheless, national constitutions continued to fulfil,
a number of important functions, exactly in this international context.
Most importantly, national constitutions regulated what portions of public power can be transferred
to international institutions and how this could be done. Grimm mentioned Art. 23 of the German
Basic Law as an example. Art. 23 regulates the transfer of powers to the EU. According to the
Lisbon decision of the German Constitutional Court any blanket transfer, amounting to transfer of
sovereignty would be unconstitutional. A reallocation of sovereignty to the EU would turn the latter
into a federal state which would be unconstitutional from the German perspective. Germany would
have to withdraw from the EU or adopt a new constitution.
Secondly, national constitutions still determine the behaviour of national public authority when
participating in international organisations. They fulfill an important function in this respect.
For example, what governmental representatives are able and not able to do in the European
Council may be restricted by the constitution. The German constitution prohibits German
representatives from agreeing to a European law that would infringe upon German sovereignty.
This used to be a very important and strong guarantee, so long as unanimity had been the rule.
As of the introduction of majority voting in the Council, no longer so.
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As regards the primacy of international or supranational law once public power had been
transferred, Grimm again used the example of the EU and explained the German constitutional
solution. Once public powers had been transferred, they could no longer be regulated by the
national constitution. European law indeed enjoyed primacy in the German constitutional order but
its validity was based on an order stemming from German national constitutional law
(Rechtsanwendungsbefehl). Where the national identity was at stake or in the case of an act ultra
vires by a European institution, the national public authority would not be entitled to apply it.
Referring to the Lisbon-Decision of the German Federal Constitutional Court, it was solely the
competence of the constitutional court to decide in these cases.
Grimm asked whether effects of Europeanisation constituted a danger for the identity of the
member states. In this respect he remarked that all conflicts had been avoided until now and he
did not foresee immediate clashes, though it had to be borne in mind that the potential thereof
was growing due to the system of division of competences, the inclusion of legal rules into the IN
FULL (TEU) and the IN FULL (TFEU) that would have the status of ordinary legislation in national
systems as well as questions on the understanding of fundamental rights and its protection.
Discussion
The discussion mainly focused on the relationship between national, European and international
law and the notion of ‘safety valves’ built or not built into the national constitution vis à vis
international law. More explicitly it was the constellation of the Kadi case that was centred on.
In a case in which a European court declared a measure implementing UN-Security Council
(SC)resolutions with legally binding character void, it was stated that this divergent unilateralism
in the sense of not fulfilling the obligations arising from the UN Charter due to human rights
concerns ultimately resulted in a UN member state not complying with Art. 103 of the UN Charter.
However, the audience was reminded that this Kadi-case constellation concerned a very narrow
and limited category of cases because of the limited amount of international acts that entailed the
same binding force as the SC resolutions on sanctions did. Focusing on safeguard mechanisms,
the Kadi-like proceedings had to be seen in the light of creating pressure on international
institutions to comply with human rights. As regards the function of safety valves, it was
emphasised that preference should be given to a system of judicial safety valves over that of
political ones.
Furthermore, once again the issue of national identity was raised. Participants reminded that in the
EU context the primary law explicitly protected the Member States national identity. There were
claims from two levels, the national as well as the European, as regards this national identity.
In this respect, it was suggested to distinguish between the two meanings of the concept of
national identity: on the one hand, there should be the national identity that was shared with
others and on the other hand there was the national identity that entailed distinctive elements
which distinguished the ‘us’ from the ‘others’.
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2.4. Prof. Dr. Luzius Wildhaber: The meaning of a constitution and of human rights
guarantees in a constitution and the implementation of the ECHR in domestic law
Prof. Luzius Wildhaber’s contribution focused on the meaning of a constitution and of human rights
guarantees in a constitution and the implementation of the ECHR in domestic law.
Wildhaber stated that virtually all modern states have a constitution. However, no one single
normative format for a constitution exists. There is a huge variety. Without claiming to have the
only valid definition, Wildhaber attempted to define a constitution as a high-level abstraction of
policy:
1.
Defining the legal and political structure
2.
That is stable and lasting
3.
Written
4.
Superior to other laws
5.
Justiciable but also pragmatic
6.
Entrenched
7.
Expressing a common ideology
Typical functions of a constitution were to lay down the governmental structure, to stipulate human
rights, to regulate what belongs to the private and to the public sector, and to regulate the
relationship with European or global laws. But he emphasized again that this is a generalization
and that there is no fixed idea as to what a constitution should do. In most cases, a constitution
would have introverted language and an introvert perspective. What happens in the international
scene is hardly reflected. National law is the reality of constitutions.
As regards national identity, Wildhaber explained that national constitutions may have the
potential of creating a common sense of being and purpose. However, this could only be achieved
over time, if at all, and there was no guarantee or necessity for that. Using Switzerland as an
example, he was not convinced that either the federal or the cantonal constitutions contributed to
a Swiss national identity. The factors of Swiss national identity are to be found, amongst other
things, in its geographical characteristics, in its ideas on direct democracy or in its multilingualism
more than in the content of the constitution.
Turning to human rights and its protection by constitution and ECHR, Wildhaber emphasized that
human rights should obviously be protected, however the scope of protection varied.
Everyone would agree, for example, that the right to life had to be protected, but there were
different answers as to where the right to life starts and where it ends. Questions regarding human
rights may appear in different forms. There had to be enough room for the development of
national particularities, and many times such particularities are not be expressed in the
constitution itself, but rather, they would be developed by courts. Wildhaber further emphasised
that human rights were not static. There was a long history of evolution of human rights, both in
terms of their content as well as in term of their application. New rights may become accepted,
or the balance betweens rights and other legitimate interests may change. Moreover, the evolution
of human rights at times corresponded more to the chaos theory than to any order. Thus, it was
not always predictable.
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As regards human rights protection in the Dutch Constitution, Wildhaber first enumerated certain
basic rights that seemed to be missing from the Constitution (for example the right to life),
or phrased in a somewhat unusual way (e.g. freedom of press, which is phrased as a prohibition on
supervision of content). However, this did not bring Wildhaber to argue that the chapter on
fundamental rights in the Dutch Constitution should necessarily be revised. First, he reminded that
the hallmark of human rights is their continuing development. Therefore, their interpretation by
courts may be more important than the wording of the guarantees in the written constitutional
text. Second, one should not haste to introduce the ‘missing rights’. Taking the right to life as an
example, Wildhaber cautioned against doing so without carefully considering whether laws relating
for example to abortion and euthanasia should be changed. Thirdly, due to the direct effect of the
European Convention on Human Rights (ECHR) in the Netherlands, the need to have a complete
and detailed human rights bill as part of the Constitution may be less urgent.
Regarding the place of the ECHR in the Dutch legal system, Wildhaber stated that the Dutch
version of monism is the most open of all and that not many serious cases from the Netherlands
come before the ECrtHR.
Accordingly, and particularly since the ECHR could be invoked in Dutch Courts, Wildhaber did not
see a need to incorporate the ECHR into the Dutch Constitution and he did not recommend doing
so. If it is nonetheless be decided that the Dutch Constitution should explicitly refer to the ECHR
and declare it binding in the Netherlands, Wildhaber considered it helpful to know what exactly that
would mean or add to the present situation. He further argued that if the ECHR were to be referred
to in the Constitution, it would be advisable to also clarify related points, such as how the
judgements of the European Court on Human Rights (ECtHR) would be perceived by the Dutch
legal system (would they also be binding and directly enforceable?) This has to be defined by the
Constitution.
Discussion
Several questions arose in the ensuing discussion. First, relating to the ‘problem’ of the rights
missing from the Dutch Constitution and the matter of the Dutch identity: one participant asked
whether the non-inclusion of certain ECHR rights means, or might be taken to mean, that these
rights did not form part of the Dutch identity. Wildhaber responded that he would not draw such
conclusion. Rather, it may actually be the case that some notions were so self-evident that there
was no need to insert them into the Constitution. It was further discussed whether the national/
constitutional identity was limited to what is in the constitution itself, or whether it can be said to
be compounded also of other distinguishing elements of the legal system. It was remarked that
national identity is a descriptive term, rather than a constitutional one and that problems may
arise if courts attempt to introduce the national identity as a constitutional matter.
Another series of questions in the discussion part related to the relationship between the ECHR and
the Dutch Constitution. Several speakers emphasised that those national systems that contain a
strong individual constitutional complaint system account for fewer cases brought before the ECtHR
than other countries. There seemed to have been general agreement that due the very open
nature of the Dutch system, inserting the ‘missing rights’ into the Dutch Constitution did not seem
to be urgently needed. However, it was remarked that inserting a general proportionality clause
into the Constitution might be a constructive addition. Finally, a point of discussion arose regarding
the position of the Hoge Raad on the questions whether the ECHR guarantees were only minimum
standards (thus leaving it for national courts to decide whether greater protection can be accorded)
or whether there was no further protection possible.
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2.5. Judge Lech Garlicki: What to do about an aging constitution?
(Replace, revise or adjust)
‘How to deal with an aging constitution?’ was the core question in the presentation of Judge Lech
Garlicki. He structured his speech in three parts. In a first part, Garlicki discussed how widespread
the phenomenon of aging constitutions is. During the second part, he reported from a Central and
Eastern European perspective. In the third part, he discussed more specifically the new challenges
brought by Europeanisation and internationalisation.
Garlicki first clarified that a constitution could not only age due to the time span but also due to
societal change. Thus, even relatively new constitutions could be aging as a result of significant
changes of circumstances. As regards the widespread of the phenomenon of aging constitutions,
Garlicki observed that during the last two centuries more than a thousand Constitutions were
adopted around the world. Most of them had disappeared even before attaining the age of
maturity, only few managed to survive for more than a century. From a European perspective,
the constitutions of the national states had diverse ages. Garlicki observed that European countries
were reluctant to undergo the process of renewed constitution giving, once a constitution had been
adopted. This had the practical implication that a visible group of constitutions was aging and no
longer reflected the actual situation. Most countries were in favour of the continuation with the old
constitutions. He exemplified it by referring to the development since 1945. In post WWII Europe,
only four countries (Denmark, Sweden, Finland and Switzerland) adopted new constitutions simply
because it was decided that the old one was no longer viable (rather than due to a dramatic
political change). All remaining new constitutions were adopted as by-products of a basic
transformation that resulted from events like lost wars, successful revolutions, independence or
dissolution of the State. But those new constitutions, once adopted, remained in place even if the
context of their functioning had changed considerably.
In order to adapt these aging constitutions to changing realities, Garlicki mentioned two manners.
One way was to introduce formal constitutional amendments. When this was done again and again,
however, this process may in some cases result in a patch-work which left little of the original
language of the constitution. In these cases the constitution may not be very coherent and it would
be very difficult to distil from it a constitutional identity. It had to be questioned how far
constitutional amendments could go until they destroyed the essence or core of a constitution.
The other way of adjusting an aging constitution to changing circumstances was by judicial
adaptation. Garlicki observed that normally both ways were used but also that for many countries,
the latter way seemed to have been the preferred path and the judiciary was involved in a
constant process of constitutional development.
Garlicki then turned to the example of ‘new democracies’ in Central and Eastern Europe and
confirmed those observations. All countries, once the transformation process had started,
had no alternative but to adopt a new constitution; the old (communist) one could not survive the
revolutionary change. In some countries constitutions had to be adopted immediately.
In other, it was possible to maintain the existing constitution and – for the transitory period –
only to revise it in a profound manner. Garlicki considered the fact that the latter approach was
taken by countries with the most successful record of transformation (for example Poland and
Hungary) interesting. Anyhow, subject to very few examples, the new constitutions - once adopted
– remained in place even if they were aging. He explained that it had not been easy to use old
constitutions as a legal framework for the transformation process. Too frequent revisions had
produced a situation of a “constitutional patchwork”.
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The survival of the legal authority of those Constitutions had been due to the active role of
constitutional courts that have been continuously adjusting the provisions of the written text to the
real life. According to Garlicki a very good portion of “substantive constitutional norms” was
created by the constitutional judge. Thus, adjustment seemed to be at least as important as formal
revision. In many ‘new democracies’, similar process of adjustment continues after the adoption of
a new Constitution.
In these countries, most emphasis was laid on the role of courts in adjusting the new but already
aging constitutions as necessary. Garlicki stressed however that this was not a real choice between
judicial activism and judicial restraint. Judicial activism in this context was not taking place in void;
rather it was dictated by the circumstances. It was an inevitable form of Europeanisation of the
legal systems. The perspective of ‘new democracies’ showed a particular link between a
parliamentary/ political process of adopting and/or revising constitutions and a judicial process of
adjusting constitutional provisions to the changing context. Garlicki argued that the constitutional
and/or supreme courts´ active role was facilitated by inspirations flowing from the Western
constitutional ideas and jurisprudence as well as from the human rights jurisprudence of the
Strasbourg Court.
Finally, discussing the challenges of Europeanisation and internationalisation, Garlicki emphasised
the need to respond to the evolution of the integration processes. Everywhere, the traditional
understanding of sovereignty had to be revised. He claimed that the traditional approach to the
role on international/supranational law had to be abandoned and a new version of the separation
of powers had to be elaborated. He explained that since the adoption of the Maastricht Treaty,
nearly all EU countries had undertaken considerable revisions of their constitutions.
Garlicki observed varying attitudes as to both the scope and content of those revisions.
The process of Europeanization of national constitutions represented probably one of the most
important challenges for the present times.
Discussion
The discussion focused on the question which court in the national system should carry out the
judicial adjustments. It was recalled that a constitutional court was unknown to the Dutch
constitutional system. Thus, the question arose whether the ordinary courts should carry out the
above mentioned function of judicial adjustment. Elaborating on this point, Garlicki explained that
his understanding of the notion of court was clearly a functional one. It was remarked that as long
as there was a judicial system ensuring the judicial adjustments, it might be of lesser importance
whether the task was carried out by a specialised constitutional court or ordinary highest courts.
In this respect, it was also suggested that the more important issue is how and by whom
constitutional complaints could be raised. Taking the ECtHR into consideration, it was explained
that there was no national complaint mechanism available in the Netherlands. However, cases
could be referred to the ECtHR. In this respect, reference to the principle of subsidiarity was made.
It was strongly argued for solving as many legal problems as possible inside the national legal
system.
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2.6. Judge Mattias Guyomar: how the French Conseil d´État deals with rights originating
from multiple sources such as the constitution, the ECHR and the EU treaties
Judge Mattias Guyomar focused his contribution on the question how the French Conseil d´État
dealt with rights originating from multiple sources such as the constitution, the ECHR and the EU
treaties.
Guyomar explained that the French constitution had various rules and rights, existing alongside
and in combination with other sources of law. The French constitution had entered into force in
1958 as the highest norm in the French legal order. France had a monist system as regards
international law. Art. 55 and 54 of the constitution were important in this regard. The French
Constitutional Council (Conseil Constitutionnel) only acted in the context of the constitution and
not international law.
Guyomar shortly outlined the Constitutional Council’s competences in constitutional review.
Starting in 1958 as a regulatory authority whose task was to avoid infringements,
the constitutional Council became the controller of rights enshrined in the constitution. The final
step in this evolution was introducing the possibility of an application for a preliminary ruling on
the issue of constitutionality (une question prioritaire de constitutionnalité) on 1 March 2010.
Before, there had not been any means to challenge the constitutionality of a statute which had
already entered into force. This new procedure could be invoked during any court proceedings
before a normal or administrative court. Under this system, if it is argued by a party that a
legislative provision infringes the rights and freedoms guaranteed by the constitution,
the Constitutional Council can under certain conditions decide over this issue after referral from the
Conseil d´État or the Court of Cassation. However, three admissibility conditions must be met:
(i) the impugned legislation is applied in the proceeding concerned or forms the basis for
prosecution; (ii) the legislation has not been previously declared as constitutional by the
Constitutional Council; and (iii) the question raised is a legal novelty or has a serious character.
There is a double filter procedure in case une question prioritaire de constitutionnalité is invoked.
If the admissibility conditions are met, the appeal must be sent to the Conseil d´État or the Court
of Cassation – whichever is relevant - which decides in turn if the claim should go to the
Constitutional Council. The Constitutional Council then has to issue a decision within three months.
If the Council considers the provision unconstitutional, the law in question is abrogated.
As regards the relationship between French constitutional norms and European law, Guyomar
referred to Art. 81 of the French constitution which regulated this relationship. This article obliged
the French national public authority to transpose European law into national law unless the French
constitution says otherwise. This exception applied only in cases in which certain European norms
directly and specifically violate the French constitution. Exemplifying by reference to the principle
of secularity (laicité), Guyomar explained that the French national identity has to be regarded as
very specific.
Concluding his contribution, Guyomar summarized that France had developed a system that really
intervened the French and the European legal order since 1958. He assessed the system as not
really consistent but laid emphasis on the fact that the French judicial system was able to find a
way to cope with the challenges of Europeanisation. The ultimate aim was to improve the
protection of fundamental rights.
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Discussion
The question on the reasons for the creation of a new possibility of an application for a priority
preliminary ruling on the issue of constitutionality was raised. Guyomar stated that it resulted from
the process of constitutional judicial review. The idea was to increase constitutional protection and
implement another control system. This newly introduced judicial mechanism was considered very
important. It might be a valuable contribution to the debate of the legitimacy of constitutional
review not only in France, because this country had to be considered important in the context of
development of democracy.
Furthermore it was stated that the test of constitutionality by the Constitutional Council is applied
to almost every law in order to make sure that doubts as regards the constitutionality of certain
provisions are taken into consideration. The added value justified the costs and the length of the
procedure.
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3. Observations and Conclusions by Sam Muller
Sam Muller pointed out that the seminar had to be seen as an attempt to contribute to the work of
the State Commission for Review of the Constitution. He stressed that summarizing or condensing
the given speeches would not be appropriate taking into consideration its rich and excellent
content as well as the highly interesting and valuable remarks made during the discussion rounds.
Thus, these concluding remarks only sketched out some general points that were observed during
the speeches and debates.
Firstly, this seminar tried to give input to the discussion whether the constitution has really aged
and if that is the case, how to proceed in order to modify it. In this respect it had to be reminded
that the issues of ´we the people` and of national identity played a significant role. The people
could not be considered a static thing. How to connect them with the constitution, its values and
fundamental norms was a challenge that the seminar had not been able to solve. However,
the thoughts concerning the concept of ´people` and of national identity shared during the
seminar might lead to further fruitful discussions and advancement in the process of the state
commission.
A second issue that was repeatedly referred to was the role of judges within the constitutional
settings. Questions concerning the design of the constitutional judiciary, the procedures thereof as
well as the function of judicial adjustments were discussed not only by the speakers but also in the
remarks from the audience. In the world of today, it seems that the role of judges in applying true
constitutionalism is pivotal, whether as a ‘safety valve’ vis à vis international rules, or to defend
against violations of constitutional fundamentals at the national level.
Thirdly, it became clear that the principle of subsidiarity had to be taken into consideration when
discussing an amendment of the Dutch constitution. There were several arguments repeatedly
raised for carrying out as much review and solving as many problems as possible inside the
national constitutional system before proceeding to the European or international level. In this
respect the question whether or not to include a catalogue of human rights in the Dutch
constitution should be approached with pragmatism. Additionally, the notion of safety valves or
filters had to be taken into consideration.
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The Hague Institute for the Internationalisation of Law (HiiL)
is fostering innovative and multidisciplinary research on
globalisation and internationalisation of law. HiiL envisions a
world in which national legal systems function well and are
based on a clear understanding of the challenges of
internationalisation. HiiL develops a strategic research agenda
on the effects of globalisation and internationalisation on
national legal systems.
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