ISRAEL LAW REVIEW

Volume 44 Number 3 2011

UNCONSTITUTIONAL CONSTITUTIONAL AMENDMENTS

Introduction
Claude Klein........................................ ..... 318
Unconstitutional Constitutional Amendments
Aharon Barak 321
.....................................................
External Review of Constitutional Amendments?
International Law as a Norm of Reference
Lech Garlicki andZofia A. Garlicki..................................343

Old and Protected? On the "Supra-Constitutional" Clause

in the Constitution of Norway
Eivind Smith ................................................ 369
The Language of Eternity: Judicial Review of the Amending
Power in France (or the Absence Thereof)
Denis Baranger ............................................. 389
The Implications of "Eternity Clauses": The German Experience
Ulrich K. Preuss .................................. ....... 429
The Challenge of Reconciling Constitutional Eternity Clauses
with Popular Sovereignty: Toward Three-Track Democracy in
Israel as a Universal Holistic Constitutional System and Theory
Sharon Weintal ............................................... 449

THE LIONEL COHEN LECTURE

The Judiciary and the Media
The Rt Hon The Lord Judge .......................... ........ 499
 ISRAEL LAW REVIEW
Volume 44 Number 3 2011

BOARD OF EDITORS
SIR NIGEL RODLEY YUVAL SHANY
Editors-in-Chief

CLAUDE KLEIN
Guest Editor

DANNY EVRON YAEL RONEN DANIEL STEPHENS

Executive Editor Academic Editor ProductionEditor

STUDENT EDITORS
HAIM ABRAHAM LITAL CASPER YAEL NAGGAN
MORAN ALRIAMI GALIT HELLER RIMONE RABINOVITCH
JOSH HERSCH ASAF LUBIN

INTERNATIONAL ADVISORY BOARD

PROF. AHARON BARAK (FormerPresidentof the Israeli Supreme Court)
PROF. DAPHNE BARAK-EREZ (Tel Aviv University)
PROF. ANTONIO CASSESEt (FlorenceUniversity)
PROF. MALCOLM FEELEY (University of Cahfornia,Berkeley)
PROF. JOCHEN FROWEIN (Max PlanckInstitutefor ComparativePublic Law
and InternationalLaw, Heidelberg)
PROF. FRANQOISE HAMPSON (University ofEssex)
PROF. VICKI JACKSON (HarvardUniversity)
PROF. MICHAEL KARAYANNI (Hebrew University ofJerusalem)
PROF. ECKART KLEIN (Potsdam University)
PROF. MORDECHAI KREMNITZER (Hebrew University ofJerusalem)
PROF. DAVID KRETZMER (Hebrew University ofJerusalem)
PROF. FIONNUALA Ni-AOLAIN (University of Minnesota and University of Ulster)
PROF. FRANCES RADAY (College ofManagement Academic Studies, Rishon leZion)
PROF. WILLIAM SCHABAS (Middlesex University, London;
National University, Ireland)
PROF. MALCOLM SHAW (Leicester University)
PROF. HENRY STEINER (HarvardUniversity)
 ISRAEL LAW REVIEW
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 INTRODUCTION

The question discussed in the articles published in this issue of the Israel Law
Review is not really new. In 1978, I published an article in this review dealing with
the issue.' At that time, it looked much more like an academic question with very
few potential practical consequences. The reason for this is clear. It was like the
discussions that took place in European countries a century ago regarding judicial
review (of legislation). Even those who favored it were not able to consider any
form of implementation. In the absence of an established principle of judicial re-
view, the problem looked purely theoretical. Later, after World War II, judicial
review of legislation became very fashionable and conquered almost all modem
occidental democracies.2 The question arising now is whether we can expect a
similar development as regards the validity and efficacy of eternity clauses. On the
one hand, there is a growing number of eternity clauses; on the other hand, we have
witnessed an extraordinary development in the field of judicial review, which is the
result of the general growth of judicial activism in all countries. In other words, two
parallel trends are coming increasingly close to one another and will certainly give
rise to a new chapter in constitutional theory and practice.
In April 2010, the International Association of Constitutional Law (IACL) held
one of its two annual round tables in Jerusalem. Entitled "Unconstitutional Constitu-
tional Amendments," it was devoted to the issue of constitutional review. In this
issue of the Israel Law Review, we present some of the papers presented at the round
table by experts from various countries.
As is well-known, the very idea of "entrenched constitutions" stems from the ne-
cessity to protect the "supreme law of the land" against the intrusion of ordinary
legislation. This finally led to the admission of judicial review (either in the form of
indirect review or in the form of direct review by special constitutional courts).
Later, it was felt that this protection would not be sufficient. What if the "amending
power" would try to bypass the constitution by amending it in order to allow the
adoption of problematic laws, such as those that had already been declared unconsti-

I Claude Klein, Is There a Needfor an Amending Power Theory?, 13 ISR. L. REV. 203 (1978).
More recently, see Claude Klein, The Eternal Constitution-ContrastingHans Kelsen and Carl
Schmitt, in HANS KELSEN AND CARL ScHMirr: A JuXTAPOsmON 61 (Dan Diner & Michel
Stolleis eds., 1999).
2 Very few exceptions, including Holland or Switzerland (at least for federal legislation), still
exist. The United Kingdom is a completely different case.

318
 INTRODUCTION 319

tutional? There thus appeared to be a need for "super-protection" or "super-

entrenchment."
As Professor Eivind Smith notes in his article, it is generally accepted that this
issue first arose in Norway in the early 19th century. The Constitution of Norway of
1814 (which is still in force) states in article 112 that amendments to the constitu-
tion: "must never, however, contradict the principles embodied in this Constitution,
but solely relate to modifications of particular provisions which do not alter the
spirit of the Constitution." Later, at a joint meeting of both its houses for the purpose
of amending constitutional law in 1884, the National Assembly of the French Third
Republic adopted the following provision: "A proposal concerning the republican
form of government is not admissible." In his article, Professor Baranger analyzes
these issues in relation to France. The above example represents the first real posi-
tive attempt to introduce an eternal clause in a constitutional document. Other
countries such as Brazil and Italy also introduced a provision preventing the restora-
tion of monarchy. In retrospect, these provisions seem quite harmless, since such a
step was never seriously considered in any of these countries.
After World War 1I the situation changed rapidly. The most important develop-
ment was realized in Germany, where article 79 § 3 of the Basic Law (1949) states:
"Amendments to this Basic Law affecting the division of the Federation into Ldnder,
their participation on principle in the legislative process, or the principles laid down in
Article 1 and 20 shall be inadmissible." The idea behind this article was very clear.
After the terrible experience of Germany during the Nazi period, it seemed appropriate
to prevent-as firmly as possible-the democratic system from going astray as it did
after 1933. Hence the introduction of this form of super-protection. In his article,
Ulrich Preuss examines the implications of eternity clauses in Germany.
When Portugal adopted a democratic constitution in 1976 following the end of
the Salazar dictatorship, it listed no less than 14 issues that were to be considered
"off-limits" by the amending power. This development crossed the line into judicial
activism and was repeated in various other countries. In 1967, for example, the
Indian Supreme Court established that there are certain matters that cannot been
amended through the amending power.'
Today, the main issue is as follows: if there are non-amendable articles in a con-
stitution, a constitutional amendment can be declared non-constitutional. This is a
new chapter in the history of judicial review. Moreover, the power to declare an
amendment non-constitutional also depends on the interpretation of the scope of the
protection granted to the constitution and its non-amendable articles. The following
is an example taken from the French situation.

3 See Golaknath v. State of Punjab, A.I.R. 1967 S.C. 1643; Indira Gandhi v. Raj Narain, A.I.R.
1975 S.C. 2299.
320 ISRAEL LAW REVIEW

As already mentioned, the first non-amendable article in France, adopted in

1884, concerned the protection of the republican form of government. At that time,
the "original intent" was clear. The article would prevent-for ever-the possibility
of restoring the monarchy in France. Later, in various decisions, the courts appeared
to hold that there were certain "republican principles" that had a constitutional value
(such as those appearing in the preamble). Hypothetically, if one were to extend the
expression "republican form of government" to these republican principles (includ-
ing certain liberties, the separation of church and state, and so forth), it would
become relatively easy to imagine a situation in which the possibility of declaring
constitutional articles non-amendable would be much broader than originally in-
tended.
These constitutional developments in the field of comparative law have turned
the question of "unconstitutional constitutional amendments" into a modern ques-
tion. It now seems very likely that we will witness more and more of this form of
judicial review in the future. This issue of the Israel Law Review can therefore be
regarded as an introduction to this new reality.

Claude Klein
Edwin A. Goodman Professor Emeritus of Public Law
Hebrew University of Jerusalem
Guest Editor