CC BY
16
DOI: http://dx.doi.org/10.20534/EJLPS-17-1-68-74
Tusupova Almagul Zhagaltayevna, Al-Farabi Kazakh National University, Kazakhstan, Almaty Candidate of Sciences (Law), Associate Professor of International Law
Department Faculty of International Relations E-mail: alma-gul-t@mail.ru Makisheva Maryash Kaidaulovna, Al-Farabi Kazakh National University, Kazakhstan, Almaty Associate Professor of Diplomatic Translation Department
Faculty of International Relations E-mail: makisheva50@mail.ru
Regulatory comparative analysis of amendments practice to the constitution of the state
Abstract: The purpose of this science paper is to present the regulatory — comparative analysis of the actual practice of amendments to the Constitution of the State. This study enables to determine the peculiarities of the procedure of adopting the laws on introducing amendments and additions to the Constitution of the Republic of Kazakhstan and the laws on introducing amendments and additions to the Constitutions of foreign states. The characteristics of the mentioned normative acts, historical and contemporary conditions and approaches to their adoption are given in this paper. The authors also present their thorough going assessments of the role and juridical nature of the laws adopted.
Keywords: President, Parliament, Constitution, Law, changes, amendments, modification, approaches.
In many constitutions of foreign states there are tions of Spain of 1978, of Kazakhstan of 1995 and regulations of the procedure of introducing amend- that of Pakistan of 1973) and "very rigid" (e. g. the ments and additions to the Fundamental Law (Con- Constitution of the USA of 1787 and that of Russia stitution). They shall depend on the nature of the of 1993).
constitution — whether it is "flexible" or "rigid". Such method of classification is mainly based
"Flexible" constitutions (Great Britain, New on the normative content of the constitution es-Zealand, etc.) are changed as ordinary laws, but tablishing the procedure of introducing changes other component parts of the constitutional legis- and amendments. In the USA this procedure is lation (norms of judicial precedents, constitution- carried out by interpreting the Constitution by the al customs, legal doctrines) are changed through Supreme Court of the USA, in Russia — by the new precedents, customs and doctrines worded Constitutional Court of the Russian Federation, as by scholars — constitutionalists. The precedents well as by other ways. The introduction of Amend-and customs are changed slowly and not so fre- ments to the Constitution without changing the text quently. Constitutional customs have been evolv- of it in the Russian jurisprudence has got the name ing for decades, even for centuries (for example, "transformation or modification of the Constitu-the non-use of the veto-clause by the Crown of tion" [1, C. 30-39]. The practical importance of the Great Britain). problem of the transformation of the Constitution is
The procedure of changing "rigid" constitu- emphasized by many foreign jurists [2; 3; 4]. tions is much more complex. And among them there In "rigid" or "hard" constitutions the norms con-may be distinguished "less rigid" (e. g. the constitu- solidating the significant principles related to the ba-
sis of public and state systems, to the legal status of the individual and citizen, in some cases — to the procedure of introducing amendments to the Constitution, are not subject to reconsideration. The bounds of such kind of prohibitions are different. Sometimes they may be restricted by one provision which is not subject to changes and amendments (e. g. the republican form of government in France); sometimes — by two provisions (e. g. the republican form of government and multiparty system in Mauritania); very rarely by five provisions (in Brazil) and by a number of provisions (e. g. in Greece, Namibia, Portugal, Roumania).
The Constitution of the Russian Federation of 1993 prohibits to make any changes in its three chapters ("The Basis of the Constitutional System", "The Rights of the Individual and Citizen", "The Procedure of Introducing Amendments to the Constitution"). The estimation of the concepts of such prohibitions is not identical. The subject banning (for example, related to the form of government in Italy or the federal structure in Brazil) can be understood without any reference to the exact articles of the constitutions of these states, because the focus is on the principal matters of their national statehood. The prohibitions of the formal nature related to the amendments of many articles or even of the whole chapters and sections may arouse various judgements and opinions.
The restrictions in introducing of amendments and additions to the Constitutions may be of a temporary nature. Sometimes it is established while adopting the Fundamental Law (Constitution) that no changes and amendments shall be introduced within a certain period of time (e. g. during five years in the Constitutions of Greece of 1975, Portugal of 1976, Brazil of 1988). Such kind of prohibition is connected with the fact that during the first years of being in effect of the Constitution, the formation of state structures and other institutions envisaged by the Constitution shall take place. That's why to disrupt this process by introducing some kind of amendments will be premature, unless some urgent cases occur.
It is expedient that some constitutions prohibit to introduce changes and amendments to the text of the constitution under certain circumstances. For
example, during imposing emergency situation or martial law in the event of a serious and immediate threat to the democratic institutions of the country (Brazil, Spain, Roumania, etc.) or in the event of the encroachment on the territorial integrity of the country (France, Guinea).
Sometimes in one and the same state amendments to the Constitution shall be introduced in several ways (for example, in France, the amendments may be introduced separately by the Parliament at the joint session of two Chambers or by the voters at an all-nation referendum). Only in a few states the supraparliament body is eligible to introduce amendments and additions to the Constitution or to the most important articles of the constitution (e. g. in Indonesia, Turkmenistan).
By no means, not all the subjects being the subjects of law of the legislative initiative shall possess the right to introduce amendments and additions to the Constitution. In Russia an individual parliament member can put forward the draft law, only a group of one-fifths of the total number of deputies from any Chamber are eligible to propose amendments and additions to the Constitution. In Benin and Mauritania such groups must be composed of one-thirds of the total number of deputies, in the Philipines — three fourths of the total number of deputies. In general, the Heads of States, Speakers of Parliament and Governments are vested with such powers. Such procedure is also in effect in Russia.
In a number of states the draft law on the amendments and additions to the Constitution may be introduced as the public legislative initiative (e. g. in Switzerland, it is necessary to have the signatures of 50 000 voters; in Austria — 100 000 voters, in Lithuania — 300 000 voters; in Italy — 500 000 signatures). In the USA the amendments and additions may be initiated by any deputy or senator (since the adoption of the US Constitution of 1787 more than 10 thousand proposals have been put forward; only 40 of them have been approved by the Congress of the USA and 27 have been ratified by the states. Thus, throughout the history of the USA, only 27 amendments and additions have been introduced to the Constitution of the USA).
Under the bicameral Parliament the Law on Introducing Amendments and Additions to the Constitution shall be adopted separately by each Chamber by the qualified majority of votes from the total number of deputies (e. g. 2/3, 3/5) — or by the consequent approval of the present law at the referendum. As it has already been mentioned, in a few states this law shall be adopted by the supra-parliament body, sometimes — at a joint session of the Chambers of Parliament (for example, in Kazakhstan, Brazil, and Mexico). In Hungary and Poland — by the majority of two — thirds of votes respectively from the total number of deputies in the presence of no less than half of deputies from the State Assembly and from the Seim. In Slovakia — no less than three-fifths of votes from the total number of deputies from the National Council. In the Czech Republic — three-fifths of votes from the total number of deputies and three- fifths from the number of the present at the session of senators. In a number of states amendments and additions shall be introduced only through an allnation referendum (e. g. in Denmark, Egypt and the Philippines). As it is seen from the information given above, the constitutions of a number of states do not extend the list of subjects of law of the legislative initiative on the reconsideration of the Fundamental Law, do not stipulate any kind of special procedures on introducing amendments and additions to the constitutions in the counterpoise of the general legislative procedures and do not determine the possible boundaries of reconsideration by restricting only the number of votes of deputies necessary for the adoption of the relevant law.
The modification of the Constitution is possible not only by introducing certain amendments but also through the new edition of its text. The latter shall take place in the event of radical changes of living conditions of the society (e. g. in Hungary in 1990 during the transition from the totalitarian regime to the democratic system). In such cases, the amendments and additions shall be introduced to the whole text of the Constitution.
Such ways of changing the Constitution have their pluses and minuses. On the one hand, it simplifies the procedure of adapting the Constitution
to the new conditions preserving its stability.
On the other hand, radical changes are carried out by the Parliament without any all-nation discussion and referendum, and it would be advisable as the new Fundamental Law is in the focus. It is known, for example, that a greater part of amendments to the Constitution of the USA have not been made by the lawmakers but through the official interpretation of the text by the Supreme Court of the USA. At the disposal of the Constitutional Court of the FRG there is such a means as "conformable interpretation", i. e. the court preserves the norms in effect, but gives them its own interpretation. Of course, in such cases the constitution is likely to be violated. It may happen so that there may occur the "rivalry" of acts with the interpreted constitutional norms. The accumulated amount of such constitutional interpretations may reach the "critical" level when it becomes possible to speak about the renewal of the constitution. That's why the interpretation of the Constitution must have certain boundaries established by the current Constitution.
The constitutional law on the introduction of amendments and additions to the Constitution, as a rule, shall not be subject to being imposed of the postponed veto by the Head of State and it must be published. Only in some countries (the Netherlands, Pakistan) the right of vetoing may be spread towards such laws as well, but in fact it has no practical applications.
Thus, the practice of introducing amendments and additions to the Fundamental Law is used in many states of the world. Amendments and additions introduced to the Constitution of the state must serve as a means of eliminating its juridical shortcomings: to make good the flaws, to eliminate contradictions, to restore the broken parity of rights and duties of the subjects of law. The constitutional amendments should be carried out in close connection of the articles which are to be amended and the articles of the Fundamental Law which are to remain unchangeable. It is necessary to forecast in due time and correctly the legal consequences of introduced amendments and additions, their influence on the current regulatory acts, as well as to foresee the economic, socio-political and cultural outcomes of the implemented juridicial innovations.
References:
1. Mityukov M. A. On the Modernization of the Constitution of the Russian Federation//Constituional development of Russia. Collection of scientific articles. Edition 4. - Saratov, - 2003. -P. 30-39.
2. Ganino M. The Russian Constitution: look from Italy//State and Law. - 1999. № 6 - P. 7.
3. Klyain H. S. Jurisdictions of the Constitutional Court//State and Law. - 1999. - № 8 - P. 15.
4. Ebzeev B. S. Interpretation of the Constitution of the Russian Federation//Constitutional Law: Textbook - M., - 1999. - P 121.
