Konstitucijos pataisų antikonstitucingumas

Mokslo publikacijos / Scientific publications
Document Type:
Straipsnis / Article
Lietuvių kalba / Lithuanian
Konstitucijos pataisų antikonstitucingumas
Alternative Title:
Unconstitutionality of amendments to a Constitution
In the Journal:
Konstitucinė jurisprudencija. 2014, Nr. 3, p. 193-217
Reikšminiai žodžiai: Antikonstitucingumas; Konstitucija; Konstitucijos pataisos; Konstitucinis teismas; Konstitucinė jurisprudencija; Papildymai; Amendments; Amendments to a constitution; Anticonstitutionality; Constitution; Constitutional court; Constitutional jurisprudence; Unconstitutionality.
Antikonstitucingumas; Konstitucinė teisė. Konstitucija / Constitutional law. Constitution; Papildymai; Teismai. Teismų praktika / Courts. Case-law.
Summary / Abstract:

ENThe problem of the unconstitutionality of amendments to a constitution is the conditio sine qua non of constitutionalism. When a constitution is in force for a longer time, initiatives to amend or repeal some provisions thereof or supplement it with new ones are introduced sooner or later. In some cases, these initiatives are regressive, “lasting for one day”, dictated by particular political interests and not deserving the constitutional rank, whilst, in other cases, they are significant ideas at a state level, giving a sense to the coherent development of the life of the national community and constitutional regulation. Irrespective of the purposes on which a proposal to amend a constitution is based or how it is proposed to correct the content of constitutional regulation, a constitution itself entrenches a mechanism for its self-protection against inadmissible, unnecessary, unfounded and hasty amendments. This mechanism is a procedure for amending a constitution, which lays down substantive and procedural limitations on the alteration of a constitution. Substantive limitations on the alteration of constitutions are entrenched in the supreme law not only expressis verbis but also implicitly. All constitutions of the world differ not only in their content but also in the procedure for their alteration. No general and universal formula of a process for amending a constitution is available. Each country’s constitution is different in this respect, having individual features and characteristics. However, there exist certain fundamental values and essential principles of a constitution, which express the essence of the entire constitution. The constitution would cease to be a constitution and would lose its meaning without them.The process for amending a constitution is a legal process and a legal procedure. A procedure means harmony, the existence of a system and compliance with a norm. Therefore, the process for amending a constitution may not be spontaneous, unrestricted and chaotic. In order to amend a constitution in a lawful and constitutional manner, heed must be paid to material (substantive) and procedural limitations on its alteration. Thus, a constitution regulates its own alteration: on the one hand, it defines the content of amendments, and, on the other hand, it establishes a procedure under which amendments to a constitution must be adopted. The adoption of an amendment to a constitution does not imply its unconditional constitutional legality and legal validation. It is possible to talk only about the presumption of the constitutionality of the adopted amendment to a constitution. However, this presumption may be denied after assessing the constitutionality of an amendment to a constitution in substantive and procedural respects. The review of the constitutionality of amendments to a constitution and the assessment of the constitutional legality of amendments is a task of constitutional justice. In general, constitutionalism is hardly conceivable without the issue of control over the constitutionality of amendments to a constitution. Within the perspective of constitutionalism, this issue arises as a natural condition for the process of the legal alteration of constitutions. A condition without which constitutionalism may not be fully-fledged. [From the publication]

Related Publications:
Lietuvos konstitucinės kontrolės modelis: kelios teorinės ir praktinės problemos / Vytautas Sinkevičius. Parlamento studijos 2016, Nr. 21, p. 168-185.
2021-03-15 13:59:52
Views: 26    Downloads: 3