The Authority of the Constitutional Judiciary in Reviewing Constitutional Amendments: (A Comparative Analytical Study)

Abstract

Constitutional documents include limitations on their amendment, established by the original constituent authority. These limitations are divided into procedural limitations, substantive limitations, and temporal limitations. Accordingly, this research raises an important question: what if the authority empowered to amend the constitution violates the limitations imposed upon its power in the constitutional document? In such a case, may constitutional amendments be subject to judicial review? This study seeks to answer this question by setting out the positions of comparative constitutional courts in a number of states regarding the review of constitutional amendments. It also examines constitutions that contain explicit provisions stipulating that constitutional amendments are subject to judicial review. This subject has been addressed through three principal axes: first, the legal basis of judicial review of constitutional amendments; secondly, the justifications supporting judicial review of constitutional amendments; and thirdly, the approaches of comparative constitutional courts regarding the review of constitutional amendments. This is undertaken within an integrated framework combining the analytical, inductive, descriptive, and comparative research methodologies. The study concludes that, in light of the limited number of constitutions that adopt the principle of judicial review of the constitutionality of constitutional amendments, the principal recommendation lies in the necessity of constitutional entrenchment of this principle, particularly in view of the inclusion within constitutional documents of constraints upon the amending power. Violation of these constraints constitutes a deviation of power that necessitates the imposition of a sanction.