Acceso usuarios
Ousu Mendy
In contemporary comparative constitutional studies, one of the most intriguing questions is: Is it possible to declare a constitutional amendment to be unconstitutional? If so, by whom and by what standards? This research delves into unconstitutional constitutional amendments and re-enactments, the choices, the rules, and the consequences that follow. A doctrinal research method is used through secondary legal data in both descriptive and prescriptive approaches. In this research, I take a holistic study of three constitutional changes – both successful and unsuccessful changes in The Gambia, Kenya and Israel – as fresh issues and use them to draw a conclusion. Formal constitutional amendment rules are the decisive mechanisms to constitutional precinct, but constitutional re-enactments tend to digress from their presuppositions and are not aligned with their basic structure, thereby destroying the continuity of the legal order. A constitution ought to be a speaking one that arises to the constant change of society because there has been a discernible change in the global constitutional debate away from the normative or institutionalist perspective and toward a more analytical and comparative approach when assessing the setting of constitutional making processes. Therefore, to change a significant provision of a constitution that has direct effect on the status of a state by taking the people away from the basket of progressive realization of a state is a non sequitur to constitutional amendment rules.
In contemporary comparative constitutional studies, one of the most intriguing questions is: is it possible to declare a constitutional amendment unconstitutional? If so, by whom and by what standards? This research investigates unconstitutional constitutional amendments and re-enactments, the choices, rules and consequences that follow. A doctrinal research method is used through secondary legal data in descriptive and prescriptive approaches. In this research, I make a holistic study of three constitutional amendments - successful and unsuccessful amendments in The Gambia, Kenya and Israel - as new questions and use them to draw a conclusion. The formal rules of constitutional amendment are the decisive mechanisms for constitutional enclosure, but constitutional re-enactments tend to deviate from their assumptions and are not aligned with their basic structure, thus destroying the continuity of the legal order. A constitution must be a constitution that responds to the changing society, because there has been a noticeable shift in the overall constitutional debate away from a normative or institutionalist perspective and toward a more analytical and comparative approach in assessing the configuration of constitutional processes. Therefore, changing a significant provision of a constitution that has a direct effect on the status of a state, taking the people out of the basket of progressive realization of a state, is a non sequitur under the rules of constitutional amendment.
