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Ratification of Constitutions
Max Planck Encyclopedia of Comparative Constitutional Law [MPECCoL]

Ratification of Constitutions

Frederik Becker

From: Oxford Constitutions (http://oxcon.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved.date: 18 June 2019

Subject(s):
Constituent assemblies — Ratification — Legitimacy

Published under the direction of the Max Planck Foundation for International Peace and the Rule of Law.
General Editors: Rainer Grote, Frauke Lachenmann, Rüdiger Wolfrum.

A.  Introduction

1.  The ratification (Latin ratificatio) of a constitution describes the formal ending of a process of setting a constitution into force by a constituent power. At the same time, the moment of the ratification or a defined date in the near future is regularly set as the legal beginning of the applicability of the newly ratified constitution. The ratification in the sense of this article means the confirmation of a constitution by a duly legitimated power. It is the final, affirmative act of a ‘series of acts that lead to the adoption of a new constitution’ (Pisarello 11).

2.  The ratification of a constitution means to establish, not to alter, a constitution (see amendment or revision of constitutions). Constitution-making and constitution-amending have to be distinguished as a ‘qualitative aliud’ (Schmitt 26). The ratification in this sense only means the initial act of approval, which is characterized by a situation without legal bindings (Winterhoff 131). Whereas the initial act of ratification of a constitution is an original act, the modification or amendment of a constitution regularly remains a derivative act established by the existing constitution (Winterhoff 356 et seq).

3.  Regarding the different ways of ratification, the people itself can express the constituent power either directly via a referendum or a plebiscite, or indirectly via a representative body. This confirmation of a new constitution can be articulated by a special council that is formed only for the purpose of the establishment of a constitution or a representative body, which already exists.

4.  With respect to the distinction between validity and applicability, the setting-into-force of a constitution doesn’t necessarily coincident with its entry-into-force. The latter means a point in time when all or several articles of the constitution are applicable and may produce effects. Ratification and applicability are oftentimes temporarily distinct, but materially connected by the ratification as the activator of every future act generated by the newly ratified constitution.

B.  Definition and Functions of the Ratification of a Constitution

1.  The Ratification of a Constitution as a Caesura

5.  The French political writer Abbot Emmanuel Joseph Sieyès developed the distinction between the pouvoir constituant (constituent power) and the pouvoirs constitués (constituted powers). The establishment of a constitution in this sense is defined as an act of a (pre-existing) nation of free and equal citizens to bind themselves through the creation of a constitution (Sieyès 121 et seq; see for the history of ideas Colón-Ríos 79 et seq; Winterhoff 26 et seq, 126 et seq). From this theoretical perspective, the ratification of a constitution founds and forms an entirely new order (Möllers 171); it presents a constitutional ‘tabula rasa’ (Hahm and Kim 32 et seq). The ratification creates a caesura, which allows a discontinuity by the legal fiction (Böckenförde 99) of the creation of a new constitution (Arendt 32: ‘clear-cut’). This caesura means neither a cessation, a complete deletion of the former order or a standstill (Häberle and Kotzur 287), nor a ‘creatio ex nihilo’ (Isensee 57), but it interrupts the course of history to show the distinction and dichotomy between the constituent power and the newly constituted powers (Luhmann 472, 475: ‘ambiguity of the difference between the inner and the outer sphere’). The junction of both powers is the moment of the ratification; respectively the moment of the entry into force of the new constitution (Schneider 72). Logically, this validation of the ratification can be completed only from an ex post perspective (Möllers 185; Winterhoff 426).

6.  In a historical perspective, today’s idea of written constitutions, which had to be ratified by a constituent power, the constituent and constitutional power in the modern sense, emerged in the eighteenth century in France and the United States (‘US’). Constitutions in today’s meaning are a ‘novelty’ originating from this time (Grimm 41 et seq, 89 et seq). The designing and re-designing of written constitutions in the American states since 1776, which finally led to the Federal Constitution of 1788/89, can be regarded as the origin of modern constitutionalism (Maier 17) and therefore the origin of an incremental process of ratification (see infra ‘Ratification by Federal States’). The US Constitution replaced the idea of a ‘created order’ by the self-determination of the people (von Ranke 214 et seq). Hence, since its beginnings in the second half of the eighteenth century, the history of constitutional ratification in today’s sense comprises a timespan of almost 300 years; no constitution on Earth has reached the unparalleled longevity of the US constitution of 1787 and its amendments (Constitution of the United States of America: 17 September 1787 (as Amended to 7 May 1992) (US)).

7.  Until the medieval time, the subject of a ‘constitutional’ foundation was solely related to God. In the words of the Epistle to the Romans: ‘[n]on est enim potestas nisi a Deo’ (‘for there is no authority except from God’; Romans 13:1, see Schmitt 77). In the same way, the octroy of a constitution by a monarch went along without any process of ratification in today’s sense. Whereas the monarch, the emperor, the king, or the prince as the respective sovereign had a ‘potestas constituens’ (Schmitt 77 in reference to God), the idea of a self-government of and by the people requires a legitimation of and by the people itself. In contrast to this, the ‘Bonapartist’ constitutions adopted in Poland (1791), Spain (1812), and Norway (1814) in the wake of the French revolution were dictated (Hahm and Kim 17). Even when the constitution-making received a ‘dualist legitimation’ of a monarch and a popular assembly, the constitutions of the Belgian Charter (Constitution of Belgium: 3 January 1831), the Wilhelmine Germany (Constitution of the German Confederation: 1 January 1871), and the Meiji Japan (Constitution of the Empire of Japan: 11 February 1889), were promulgated ‘as a royal gift to the (bourgeois) people' (Hahm and Kim 18). For example, the preamble of the Constitution of the North German Confederation (Norddeutscher Bund) of 18 August 1866, began not only with a pluralis majestaetis, but also with a reference to God’s grace: ‘[w]e William II, by grace of God King of Prussia’. The emperor ‘gave’ the constitution to the people.

8.  In a historical and comparative view, ‘major discontinuities’ are one of the most frequent causes for creating a new constitution (Grimm 21, 49 et seq with examples for revolutionary breaks). In Europe—especially after the Second World War, but also post-1990 after the fall of the Iron Curtain—or in post-apartheid South Africa, the ratification of new constitutions was an act of re-foundation and ‘democratic transition’ (Thornhill 327 et seq, 355 et seq). The reasons for the ratification of a constitution were so plural that they cannot be enumerated in a canonical way, but may be systematized on the basis of certain recurring criteria. Yet the constituent power remains a constitutional term on the dividing line between normativity and facticity, a ‘liminal concept’ (‘Grenzbegriff’) (Böckenförde 90 et seq). It inherits unavoidably the ‘aporia of the beginnings’ (Isensee 9 et seq) because the newly ratified constitution is the ‘base layer’ for the future legal order (Volkmann 92).

9.  The history of the process of constitutional drafting cannot be regarded as a monolithic bloc (see drafting of constitutions). In most cases, the act of ratification is expressed in the constitution, but sometimes the exact procedure of the ratification has to be identified on the basis of the history or its preamble. As the manifestation of constitutional ratifications has plural and historically contingent forms, a holistic assessment of the entirety of the process is not an accurate way for a constitutional comparison. In lieu thereof, a dissection of every step of the process is necessary. This approach of analysis of constitutional ratification is presented in the following sections of this article.

2.  Textual Authentication and Validation as the Primary Function of the Ratification

10.  For constitutional systems with a written constitution, the textuality of the constitution, which is in particularly expressed by its ratification, is essential. It describes and safeguards a modus of documentation, certification, publicity, and visibility of the constitution (see Federal Constitutional Court of Germany (Bundesverfassungsgericht) in Finanzvertrag (1959) 336 (Ger)). As an act and part of the positivism of modern constitutionalism, this authentication formalizes the process of constitution-making. The form of a written constitution seems so universal and conventional that even numerous autocratic systems know a textual constitution (Loewenstein 140).

11.  Political systems without a written constitution, especially the common law states, partially make use of the textual form too, without having an ensemble of upper-level rules. The textual form is particularly established in the area of statutory law (Jellinek 5; regarding the influential work of Albert Venn Dicey see Lepsius 565 et seq). These rules may intensify because of the ratification of international treaties whose effects can go beyond the statutory law. For example, in the United Kingdom, the Human Rights Act of 1998 has been regarded as a step to a ‘constitutionalization’ of the system by recognizing the guarantees of the European Convention for the Protection of Human Rights and Fundamental Freedoms (1950) (Blick 187 et seq). Without ratifying a constitution, there may be de iure ‘constitutional’ obligations resulting from public international law or the law of a supranational organization like the European Union (‘EU’).

12.  The ratification of a constitution is not only a declaratory act, but a constitutive-integrative act. It is part of the functional prerequisite of a constitution to make its text in a positivistic way visible and readable, and to adjust and fix the authorized and authoritative contents of the constitution (for a summary of these functional aspects of constitutional drafting Isensee 30 et seq; Voßkuhle 46 et seq, 50 et seq). At the same time, the ratification and promulgation of the constitution stabilizes and protects the text of the constitution by fixing the rules to alter it (Voßkuhle 56 et seq).

3.  The Unrestricted Legal Autonomy of the Constituent Power

13.  There are no pre-existing rules for the ratification of a constitution (Böckenförde 99, 107 et seq; Waldhoff 310 et seq). It is impossible to bind the constituent power (classically Sieyès 135 et seq; Schmitt 82). The pouvoir constituant enjoys full legal autonomy. Consequently, criteria limiting this autonomy cannot be taken as a basis for a legal assessment of constitutional ratifications (regarding natural law see Isensee 16; Grimm 42). Those criteria discussed in legal scholarship are, for example, the democratic legitimation of the constituent power, the care and attention of minority rights, especially fundamental or human rights, the legal continuity of the existing order (Herdegen 351; Häberle 297 et seq), or even a ‘comprehensive conception of equity and justice’ (Volkmann 94 et seq). These ‘benchmarks’ for a (democratic) constituent power are political desiderata but not mandatory rules (see similarly Herdegen 351). The history shows, furthermore, that many processes of constitutional ratification did not satisfy the requirements imposed by the new order as democratic rule-making (Möllers 185). This manifests not necessarily a lack of democratic legitimation, but only shows the sovereignty of the constituent power. For these reasons, the legal term ‘ratification of a constitution’ has to be ‘de-materialized’ and rather ‘proceduralized’. The procedure of ratification has to be taken as it was or is without any prejudice regarding its substance or form—or, in the words of Oliver Wendell Holmes Jr, ‘[c]onstitutions are intended to preserve practical and substantial rights, not to maintain theories’ (Davis v Mills (1904) 457 (US); see Crawford 439).

14.  An exception has to be made if a current constitutional order shall be replaced by another via a procedure fixed in the former constitution (Herdegen 349). This is a form of self-commitment which binds the prospective constituent power by the rules imposed by the ratified constitution. In this sense, Article 193 Section 4 of the Federal Constitution of the Swiss Confederation: 18 April 1999 (as Amended to 15 March 2012) (Switz) binds the creation of a new constitution to the ‘mandatory provisions of international law’ (Ius Cogens; international ius cogens in national law). This codifies the respect for the fundamental rules evolving from public international law which are even applicable vis-à-vis the constituent power. Nevertheless, those procedural or even material requirements are, with good cause, rare. The determination of rules regarding the pouvoir constituant partially negates the concept of the unbound power establishing a constitution itself. Therefore, (declaratory) proclamations that a dissolution of the constitution is only possible by the constituent power remain in a circular reasoning. For example, the Basic Law of the Federal Republic of Germany: 23 May 1949 (as Amended to 13 July 2017) (Ger), according to its Article 146, ‘shall cease to apply on the day on which a constitution freely adopted by the German people takes effect’. In German legal scholarship, it is highly controversial whether the principles of human dignity (dignity and autonomy of individuals) and rule of law are, because of their universality (universalism), even binding for the constituent power (with this consideration see Lissaboner Vertrag Case (Ger) (2009) 343 (Ger)). The text of the provision makes no case for this opinion, and this interpretation has been contested as a gateway for natural law. In consequence, an existing constitution may be replaced by a new constituent power unless there is no express prohibition in the actual constitution.

15.  On the other hand, a peace treaty may preform the content and process of a new constitution, as was the case in Bosnia-Herzegovina (Wolfrum 49) (peace treaties and their influence on constitutions). Another possible form of self-binding is the creation of rules binding a future constituent power (borrowing and migration of constitutions), which may be set by a transitional constitution. In post-apartheid South Africa, a Transitional Constitution was in force since the first democratic elections on 27 April 1994. This constitution contained 34 ‘constitutional principles’, which guided the constitutional negotiators selected representatively regarding the entirety of political groupings (Du Plessis 210). After the drafting of the constitution, the Constitutional Court of South Africa had to certify that the elaborated constitution was ‘duly authored and passed in accordance with formal and substantial requirements’ agreed on by the constitutional negotiators (Du Plessis 210). The Court referred the draft back to the constitution-makers once and then approved and certified the final constitution. The constitution was adopted in 1996 and came into operation on 4 February 1997 (compare Article 243: ‘comes into effect as soon as possible on a date set by the President by proclamation, which may not be later than 1 July 1997’). Comparably, Article 347 et seq of the Constitution of the Bolivarian Republic of Venezuela: 15 December 1999 (Venez) expressly establishes rules regarding a new constituent power, which may ‘be exercised by calling a National Constituent Assembly for the purpose of transforming the State, creating a new juridical order and drawing up a new Constitution’.

4.  Unity and Multitude of the Ratified Constitutional Text(s)

16.  These functions of the ratification of a constitution moreover do not preclude the form of the texts ratified and established as constitutional law. Several forms are known. The majority of the constitutions presented in the following sections of this entry consist of one, self-contained document, displaying the constitution ‘as it is’. This unity of constitutional law underlines the principle of legal certainty and authenticity: everyone who takes a look in the constitution knows what the constitutional law is. In this respect, a particularly strict rule is established by Article 79(1) cl. 1 of the German Basic Law: ‘[t]his Basic Law may be amended only by a law expressly amending or supplementing its text’. This stipulates a ‘textual loyalty’ (Texttreue): only an express alteration of the text is able to modify the constitutional law. This prevents the transfer or ‘outsourcing’ of constitutional rules into statutory law, like it was a practice under the Weimar Constitution (1919). Article 76 of the Constitution of 11 August 1919 allowed that the constitution may be amended ‘by legislation’ which led to an unclear patchwork of constitutional norms, located in many different statutes (Gusy 145 et seq).

17.  In contrast to this strict textual unity, the modification of the constitution can be stipulated in the form of amendments complementing but not altering the original text. The most prominent example is the US Constitution, which does not allow the alteration of the original text but only its continued supplementation via an amendment (Art. V US Constitution). The original text of the US Constitution is therefore ‘resistant’ to a modification. The amendments ratified by the legislatures of three-fourths of the several states, or by conventions in three-fourths thereof, become an equal and integral part of the US Constitution, which amend the existing articles constructively (see infra ‘Ratification by Federal States’).

18.  At last, the ratified constitution may consist of several equally ranking constitutional sources without a textual unity. For example, the Preamble of the Constitution of the French Republic: 28 September 1958 (as Amended to 23 July 2008) (Fr) incorporates the French Declaration of the Rights of Man and of the Citizen (1789) (Fr), the Preamble of the Constitution of 27 October 1946, and the Charter for the Environment of 2004 (1 March 2004) which represent, in the form of several documents, the ‘constitutional block’ (bloc de constitutionnalité). In a similar way, according to Chapter I Article 3 of the Constitution of Sweden (Instrument of Government (SFS nr 1974:152): 1974 (as Amended to 7 December 2010) (Swed)), the ‘Instrument of Government, the Act of Succession, the Freedom of the Press Act and the Fundamental Law on Freedom of Expression are the fundamental laws of the Realm’. The constitution of Sweden is formed by these four fundamental laws and not by a uniform document. The same is true for the state of Israel: several constitutional laws are enacted for example regarding the Knesset, the elections, human rights, and the government.

C.  The Ratification of a Constitution—Clarification of a Heteronym

1.  Multiple Meanings of Ratification in Constitutional Law and Public International Law

19.  The term ‘ratification’ is heteronymous. It has to be clarified and delineated in two regards: its meaning in constitutional law and its meaning in international law. In the field of constitutional law, the term describes the procedure to enact bilateral or multilateral treaties in the sense of public international law to become authoritative in national law. It means the formal act of an approval, thus a declaration of consent to a legal text. Moreover, ‘ratification’ as a constitutional term is applied in the context of the approval of a constitutional amendment by referendum.

20.  In the field of public international law, Article 2 Section 1 lit. b of the Vienna Convention on the Law of Treaties (1969) (‘Vienna Convention’) puts the term ‘ratification’ in a row with the expressions ‘acceptance’, ‘approval’, and ‘accession’, which ‘mean in each case the international act so named whereby a [s]tate establishes on the international plane its consent to be bound by a treaty’. The consent of a state to be bound by a treaty is expressed by a ratification when the duly authorized organ defined by national law gives its consent. As Hersch Lauterpacht defined it in a report for the International Law Commission (ILC), ‘[r]atification is an act by which a competent organ of a [s]tate formally approves as binding the treaty or the signature thereof’ (Lauterpacht 112).

21.  In this sense, Article 11 of the Vienna Convention states that the ‘consent of a [s]tate to be bound by a treaty may be expressed by signature, exchange of instruments constituting a treaty, ratification, acceptance, approval or accession, or by any other means if so agreed’. Whereas public international law thereby statutes a semantic openness towards several forms of the implementation of a treaty, the approval by ratification is the most common one. Every treaty itself has to decide on the form of approval, as for example Article 82 of the Vienna Convention itself does. As an international treaty necessarily needs to be concluded in written form (Art. 2 s1 lit. a Vienna Convention), the ratification also fulfils the purpose of a textual authentication of which international treaty law is in force (compare Art. 38 s1 lit. a Statute of the International Court of Justice (ICJ)). The term ‘ratification’ is, in summary, not coextensive with the term ‘constitutional ratification’ because the rules of international law blank out for example the competences of the domestic constitutional organs.

2.  Constitutional Ratification and Public International Law

22.  The equivocal term ‘ratification’ has to be separated from the question, if public international law determines any legal specifications regarding the ratification of a constitution. From this perspective, the ratification of a constitution is part of the inner autonomy—its sovereignty—of a state and thus no matter of public international law. Article 2(7) United Nations Charter (1945) states that the United Nations are not authorized ‘to intervene in matters which are essentially within the domestic jurisdiction of any [s]tate’. Article 2(1) of the United Nations Charter reaffirms the principle of the sovereign equal power of every Member State (Wolfrum 43; see also States, Sovereign Equality). As constitution-making is ‘traditionally the hallmark of state sovereignty and the ultimate expression of national self-determination’ (Wolfrum 44), a state is, in principle, completely free to adopt and amend its constitution. In this sense, this article employs a comparative-positivist (‘reduced’) term of the constitutional ratification which is free of a hypothetical ‘super-norm’ managing and controlling the process of ratification. In this sense, there cannot be a mandatory rule proclaiming a ‘bottom-up-mechanism’ of (democratic) legitimation during the process of ratification (compare Winterhoff 119). In consequence, the act of ratification can’t be invalid from the perspective of public international law even if it includes grave discriminations or other violations of human rights (compare Schneider 70 et seq).

23.  An exception has to be made regarding obligations arising from public international law in particular cases, especially in the framework of the so-called ‘post-conflict’ missions (see Dann and Al-Ali 425 et seq; Epping 109 et seq; Wolfrum 43 et seq). As already pointed out, in general there is no established rule promoting a democratic or other legal principle of constitutional ratification. However, under the aegis of the United Nations (UN), several institutions promoted a process of constitutional drafting in some cases. Recent examples for a process of constitution-making under this ‘chaperonage’ or moderation of an international institution were the post-conflict situations in East Timor, Iraq, and Sudan (see, in detail, Dann and Al-Ali 431 et seq, 434 et seq, 442 et seq; Epping 110). In each of these cases, the respective procedure of ratification remained in the hands of the affected people while the United Nations delivered a procedural framework promoting a drafting procedure for the constituent power (see, in detail, Dann and Al-Ali 434). The approach by the United Nations is therefore, in principle, not to undermine the original constituent power and to ensure the highest possible degree of acceptance for the established constitutional system (compare Wolfrum 51). In this sense, in public international law, the keyword of ‘constitutionalization’ has often been used as a ‘leitmotiv’ (Fassbender 274; Crawford 462) semanticizing the process of a worldwide dissemination of the idea that a constitution embodies the fundamental rules of a state which are part of the political process but underlie a mechanism of ratification and alteration which is distinct from the mechanism of the legislative process regarding the statutory laws.

3.  Constitutional Ratification in Supranational Systems?

24.  Whereas the debate concerning a ‘constitutional’ dimension of the European Treaties exists since the beginnings of the processes of European integration (see Grimm 32 et seq; Häberle 287 et seq, 313 et seq; Les Verts v Parliament (CJEU) (1986)), the enacting of the treaties does not fulfil the requirements of a ratification of a constitution in the sense of this article. The ratification of the treaties of the former European Communities and the EU follows the principles of public international law, whereby the consensus to the treaties is required. The Treaty of Lisbon (2007) had to be ratified by the High Contracting Parties in accordance with their respective constitutional requirements; the instruments of ratification had to be deposited with the government of the Italian Republic (Art. 52(1) Treaty on European Union (‘TEU’); Art. 357(1) Treaty on the Functioning of the European Union (‘TFEU’)). The apparent antinomy between Article 53 TEU and Article 356 TFEU (‘is concluded for an unlimited period’) on the one hand and the right of a withdrawal from the EU (Art. 50 TEU) on the other hand gives no point for a constitutional dimension of the supranational framework of European law. After the rejection of the ratification of the Treaty establishing a Constitution for Europe (2004) by the French and Dutch referendums in 2005, it became clear that a constitutional dimension of the EU system is in contrast to its institutional and political agenda. The Treaty of Lisbon, which came into force on 1 December 2009, therefore refrains from a symbolic language comprising potentially a ‘constitutional’ ratification (Möllers 184 et seq).

D.  The Modi Vivendi of the Ratification of a Constitution

25.  Whereas the modi operandi of constitution-making are necessarily heterogeneous and historically contingent, the following section undertakes a systematization based on the form of the affirmative act of bringing a constitution into effect. As every constitution is a compromise of political ideas and legal positions, its emergence may compose several elements of the following ways of ratification (Wolfrum 51). The historical narration of constitution-making renders a completely sharp-edged distinction insofar impossible.

1.  Revolution and Ratification

26.  Many constitutions emerged in the aftermath of revolutionary acts (revolution). As the genesis of numerous constitutional systems was an informal, unorganized, at times even anarchic, and in its literal sense ‘lawless’ process, for example after the end of a totalitarian system (totalitarianism), a coup of the government (coup d'état), or comparable major political changes, these origins of the provenance of constitution-making may be described and embraced by the term ‘revolutionary’ (Jellinek 3 et seq; Murswiek 54; Spång 12 et seq). Until today, the ‘radicalism of the revolution’ is a topic frequently discussed in the context of the establishment of the US Constitution (see for the underlying traditions Wood 1 et seq, 169 et seq). On the contrary, to avoid the term’s historical contingent implications, the ratification of a constitution may be named, in a more neutral manner, a genuine act of self-authorization (Waldhoff 290 et seq). This meaning follows an Arendtian description of a revolution: ‘only where change occurs in the sense of a new beginning … to bring about the formation of a new body politic, where the liberation from oppression aims at least at the constitution of freedom can we speak of revolution’ (Arendt 25). Force or violence doesn’t necessarily have to accompany a revolution, as the peaceful transfer of power in many states has shown—for example in the process of the German reunification. Having as their aim the safeguarding of freedom (Arendt 25), the constitution in the moment of coming into force establishes its own supremacy vis-à-vis the previously existing law: this is the effect of the ratification as a caesura, which is a common element of every mode of constitutional ratification presented in the following sections.

2.  Ratification via a Referendum or Plebiscite

27.  A direct way to ratify the constitution by the people’s vote is its approval via a referendum (direct democracy) or plebiscite. As already pointed out, this form of direct democratic authorization does not necessarily include a higher level of legitimacy of the constituent process compared with other forms of a constituent power (Wolfrum 49). As the popular vote is a decision between approval and rejection (Wolfrum 49), a referendum or plebiscite on the constitution may result in a narrow majority and so, though its legitimacy, leave the inferior minority divided on the decision. This effect would contradict the principal possibility of a basic consensus required for the acceptance and legal effect of a constitution (legal effect of constitutions). Therefore, the ‘democratic label’ (Wolfrum 49) of a referendum does not coincide with the democratic legitimation of the ratified constitution. Nevertheless, the degree of democratic legitimation increases when the ratification procedure ensures access to information and the possibility of participation of the population concerned by the adoption of the constitution (public participation).

28.  Beside these legal and practical caveats, the form of referendum is a frequently adopted procedure for the ratification of a constitution. The following constitutions expressly require an approval by a referendum or plebiscite (the list is non exhaustive):

  • •  Constitution of the Principality of Andorra: 14 March 1993, final provision (Andorra);

  • •  Constitution of the Republic of Azerbaijan: 12 November 1995 (as Amended to 18 March 2009) Preamble, ‘nationwide referendum’ (Azer);

  • •  Constitution of the Republic of Bénin (Law No. 90-32): 2 December 1990, Art. 151 (Benin);

  • •  Constitution of Burkina Faso: 11 June 1991 (as Amended to 5 November 2015), Art. 169 (Burk Faso);

  • •  Constitution of the Republic of Cameroon: 2 June 1972 (as Amended to 14 April 2008) (Cameroon);

  • •  Constitution of the Federal Islamic Republic of the Comoros: 30 October 1996, Art. 45 (Comoros);

  • •  Constitution of the Republic of Chad: 14 April 1996 (as Amended to 3 July 2013) Art. 225 (Chad);

  • •  Constitution of the Republic of Côte d’Ivoire: 23 July 2000 (as Amended to 2004), Preamble (Côte d’Ivoire);

  • •  Constitution of the Democratic Republic of the Congo: 18 February 2006 (as Amended to 20 January 2011), Art. 229 (Dem Rep Congo);

  • •  Constitution of the Republic of Cuba: 24 February 1976 (as Amended to 26 June 2002), Preamble (Cuba);

  • •  Constitution of the Republic of Djibouti: 4 September 1992 (as Amended to 21 April 2010), Art. 93 (Djib);

  • •  Constitution of the Republic of Ecuador: 28 September 2008 (as Amended to 7 May 2011), Final Provision (Ecuador);

  • •  Constitution of the Arab Republic of Egypt: 18 January 2014, Art. 247 (Egypt);

  • •  Constitution of the Republic of Equatorial Guinea: 16 November 1991 (as Amended to 17 January 1995), Final Provisions (Eq Guinea);

  • •  Constitution of the Republic of Estonia: 28 June 1992 (as Amended to 17 October 2005), Preamble: ‘on the basis of Art. 1 of the Constitution which entered into force in 1938, and in the referendum held on 28 June 1992’ (Est);

  • •  Constitution of the Republic of Haiti: 29 March 1987 (as Amended to 19 June 2012) Art. 298 (Haiti);

  • •  Constitution of the Republic of Iraq: 15 October 2005, Art. 144 (Iraq);

  • •  Constitution of Ireland: 29 December 1937 (as Amended to 4 October 2013), implicit reference in the Preamble (Ir);

  • •  Constitution of the Republic of Kazakhstan: 30 August 1995 (as Amended to 21 May 2007), Art. 90 (Kaz);

  • •  Constitution of the Republic of Kenya: 6 May 2010, Art. 263 (Kenya);

  • •  Constitution of the Kyrgyz Republic: 27 June 2010, implicit reference in the Preamble (Kyrg);

  • •  Constitution of the Republic of Madagascar: 11 December 2010, Art. 164 (Madag);

  • •  Constitution of the Republic of Mali (Decree No. 92-073): 25 February 1992, Art. 120: ‘within thirty days’ (Mali);

  • •  Constitution of the Republic of the Marshall Islands: 1 May 1979 (as Amended to 1995), Art. XIV s6 (Marsh Is);

  • •  Constitution of the Republic of the Union of Myanmar: 29 May 2008, Preamble (Myan);

  • •  Constitution of the Republic of Niger (Seventh Republic): 31 October 2010, Art. 183 (Niger);

  • •  Political Constitution of the Republic of Peru: 31 October 1993 (as Amended to 5 April 2005), Fourteenth Transitional Provision (Peru);

  • •  Constitution of the Republic of the Philippines: 2 February 1987, Art. XVIII s27 (Phil);

  • •  Constitution of Romania: 21 November 1991 (as Amended to 29 October 2003), Art. 153 (Rom);

  • •  Constitution of the Russian Federation: 12 December 1993 (as Amended to 21 July 2014), s2 cl. 1 (Russ);

  • •  Constitution of the Republic of Rwanda: 26 May 2003 (as Amended to 17 June 2010), Preamble, Art. 177 (Rwanda);

  • •  Constitution of the Republic of Senegal: 22 January 2001 (as Amended to 21 October 2008), Art. 108 (Sen);

  • •  Constitution of the Kingdom of Spain: 6 December 1978 (as Amended to 27 September 2011), Preamble (Spain);

  • •  Constitution of the Republic of Suriname: 30 October 1987, Art. 186 (Surin);

  • •  Constitution of the Syrian Arab Republic: 13 March 1973 (as Amended to 11 June 2000), Art. 156 (Syria);

  • •  Constitution of the Republic of Tajikistan: 6 November 1994 (as Amended to 22 June 2003), Preamble (Taj);

  • •  Constitution of the Republic of Turkey: 7 November 1982 (as Amended to 16 April 2017), Art. 177 (Turk);

  • •  Constitution of Ukraine: 28 June 1996 (as Amended to 21 February 2014), Preamble (Ukr);

  • •  Constitution of the Oriental Republic of Uruguay: 27 November 1966 (as Amended to 8 December 1996), Letter A of the Transitory and Special Provisions (Uru);

  • •  Constitution of Venezuela, Art. 347 and Final Provision (Venez).

In the aftermath of the so-called Arab Spring, for example in the Islamic Republic of Yemen, a popular referendum on a new constitution should have replaced the 1991 Constitution, but was refused by the National Authority for Monitoring the Implementation of National Dialogue Conference.

29.  As seen by this number of ratifications by referendum, the assumption that a constituent power relies on the idea of representation and not on the idea of a direct popular vote (Hofmann 289 et seq), cannot be proven by the practice of comparative constitutional law.

3.  Ratification by Federal States

30.  The ratification of a constitution by federal states was one of the basic elements of the theory of a federal state (‘Bundesstaat’) described by Carl Schmitt (Schmitt 361 et seq) which is until today widely recognized in legal scholarship (see, for example, the references presented by Oeter 377 et seq) (see also federalism; political philosophy of federalism). In this conceptual framework, the state composed of federal states (Bund) emerged by the consent of the federal states to form an entity beyond themselves—the national state. This treaty of federation is the act of constituent power (‘Bundesvertrag’, Schmitt 368). In Schmitt’s theory, a constitution comes into existence either through a unilateral political decision by the subject of the constituent power or a mutual agreement by several of such subjects (Schmitt 44).

31.  In this sense, the genesis of a federal state is a history of the ratification of a federal constitution by its federal states. However, this connection is not self-evident: a state may be composed by federal states without an own constituent power. Hence, the duplication of sovereign power allows that competences may be shifted and modified by the federal level without the (unanimous) consent of the states. This argues in favour of the own constituent quality of a federation. In history there are only few examples for this type of establishment of a constitution. Exemplarily, in the following section the US Constitution as a system of a federation of states and the German Basic Law as a system of a federal state will be examined.

32.  The US Constitution is today the world’s oldest written constitution in force. Article VII of the US Constitution links the establishment of the constitution with its ratification: ‘[t]he Ratification of the Conventions of nine States, shall be sufficient for the Establishment of this Constitution between the States so ratifying the Same’. Hereafter, neither a consent by the Congress nor the unanimous approval by the state legislatures but only a qualified majority of separately established conventions in the states was required to enact the US Constitution. Although this way of ratification was not without controversy (Maier 30; Rakove 102 et seq), the procedure was established at the end by the 1787 Philadelphia Constitutional Convention. As Delaware was the first state ratifying the constitution on 7 December 1787, the threshold of Article VII was reached when New Hampshire voted to ratify the constitution on 21 June 1788 (the procedure of ratification is presented in detail by Heideking passim; Maier passim; and Rakove 94 et seq). Rhode Island was the only state calling for a referendum instead of a convention (Heideking 50). The federal government began to operate under the new constitution on 4 March 1789. In James Madison’s words, the popular consent upon the constitution was ‘given by the people, not as individuals composing one entire nation, but as composing the distinct and independent [s]tates to which they respectively belong’ (Federalist Paper No. 39 (Madison), quoted from Kramnick (ed) 256 et seq; see US Term Limits Inc v Thornton (1995) 846 (US) (Thomas, J, dissenting)). Madison explains the legal nature of ratification as follows: ‘[i]t is to be the assent and ratification of the several [s]tates, derived from the supreme authority in each state—the authority of the people themselves. The act, therefore, establishing the [c]onstitution will not be a national but a federal act’ (Federalist Paper No. 39 (Madison), as quoted from Kramnick (ed) 257).

33.  The Federal Constitution replaced the articles of Confederation of 1777 (Articles of Confederation: 17 November 1777) and was the continuation of the constitutionalization of the new political community of the US having its origins in the Declaration of Independence of 1776. The 55 Founding Fathers of the Philadelphia Convention elaborated the constitution following the idea that the constitutional system needed a complete rearrangement (Heideking 18). The framers thereby overstepped their original charge imposed by the Congress to only draft amendments to the existing articles of federation. The debates of the Convention mirrored the controversies between the federalists and anti-federalists, especially regarding the powers of the executive and the legislative branch (Heideking 105 et seq; Rakove 131 et seq). An important element of the ratification process were the Federalist Papers. With the help of those 85 newspaper articles, published under the pseudonym ‘Publius’ in the years 1787–88, the people of the state of New York were convinced that the ratification of the new constitution was necessary. The aim was to show that the state has to enter as ‘one out of many’ (‘e pluribus unum’) in a confederation with a federal government formed by the constitutional convent of Philadelphia, otherwise the Union would break up. Most of the articles were written by Alexander Hamilton and James Madison, a few by John Jay. The articles not only have an eminent historical meaning accompanying the process of ratification, they also serve as a source of interpretation in today’s US constitutional law. This part of the procedure of the ratification makes the process of drafting and ratifying of the constitution particularly documented, traceable, and visible. As a very characteristic originality of how constitutions have been ratified and amended, the original text of the US Constitution can only be supplemented exclusively via an amendment. The amendment process of Article V consists of two stages: the proposal and its ratification. The amendment has to be approved by a supermajority of three-fourths of the legislatures of the states. In consequence, theoretically, the 13 least populous states representing one quarter of the number of states and only 4.4 per cent of the population are able to block an amendment supported by the other states representing 95.6 per cent of the population (Jackson 455 based on data of the US census bureau). Further, Article IV Section 3 cl. 1 of the US Constitution (Admission to the Union Clause) has not to be regarded as a ‘ratification’ in the sense of this article: it made and makes it possible for Congress to admit a state to enter into the US. This procedure broadens the spatial scope of the constitution and requires the participation of the newly admitting state but doesn’t include a ratification of the federal constitution by the state. The most recent application of this article was the Act to Provide for the Admission of the State of Hawaii into the Union (Public Law 86–3, 73 Stat. 4, enacted 18 March 1959 (US)).

34.  Another example of the ratification by federal states is the Basic Law of the Federal Republic of Germany. The Basic Law has gone through two major historical steps to obtain today’s spatial scope of application: first, the initial ratification in 1949; and second, the accession of the German Democratic Republic (‘GDR’) in 1990. Furthermore, the Saarland became, in consequence of a referendum, a state of West Germany in 1957. In turn, the 1949 ratification consisted of two iterations. After the 65 members of the Bonn Parliamentarian Assembly (Parlamentarischer Rat) had elaborated the Basic Law beginning from 1 September 1948, they passed the original version on 8 May 1949, four years after the capitulation. According to Article 143(1) Basic Law, the German post-war constitution had to be ratified by two-thirds of the German Trizonal federal states (Länder). Whereas ten of the eleven Länder approved the Constitution between 16 and 22 May 1949, only the Bavarian Parliament rejected the approval with a majority of 101 against 63 votes. At the same time, Bavaria accepted its application in case of a ratification. The Basic Law came into force for the entirety of the eleven federal states by promulgating its adoption by the Parlamentarischer Rat (Art. 145(1) and (2) Basic Law). A referendum by the West German population was originally demanded by the Western allied occupation forces in the 1948 Frankfurt Document No. 1, but was rejected during the debates of the constitutional assembly. At first sight, a ‘plebiscitary deficit’ is allegedly adhered to the Basic Law (Mußgnug 349; Murswiek 76 et seq). However, the process of ratification doesn’t lack any legitimation because the parliaments of the federal states approved the federal constitution, comparable to the US model of ratification. In addition, the first election of the Bundestag on 14 August 1949 showed that the population accepted the post-war constitution because nearly three-quarters of the electorate voted for parties that supported the new constitution. It has only an informal meaning to characterize this election as a popular ‘approval’ (Mußgnug 352).

35.  The declaration of the former GDR according to Article 23 Basic Law (of the original version) after the reunification of Germany was not a ratification of the constitution, but an accession (‘Beitritt’) which extended the spatial scope of application of the constitution to the former territory of the GDR in 1990. Formally, the accession was put into effect via the German Unification Treaty (Einigungsvertrag) which was approved on 20 September 1990 by the first freely elected Volkskammer (‘People’s Chamber’) of the GDR and the Bundestag, the German parliament. Finally, the Bundesrat, the German second chamber (see bicameralism) representing the federal states, approved the law unanimously on 21 September 1990, so that the reunification could take effect on 3 October 1990.

4.  Combination of a Referendum and a Federal or Parliamentary Approval

36.  As an example of a connection of a popular and a federal mode of constitutional ratification, the Federal Constitution of the Swiss Confederation: 18 April 1999 (Switz) received a dual legitimation. According to its Section IV of the Final Provisions, it had to be submitted to a vote of the people and the cantons.

37.  A combination of a parliamentary approval and a popular vote via referendum is provided by the Constitution of the Democratic Republic of São Tomé and Príncipe (Law No. 1/2003): 5 November 1975 (as Amended to 29 January 2003) (São Tomé & Príncipe). This constitution was, according to its preamble, in a first step approved by the National Popular Assembly and then in a second step ratified by a popular referendum. In a comparable way, the Constitution of the Republic of Iceland: 17 June 1944 (as Amended to 24 June 1999) (Ice), according to its Article 79, entered into force after the Alþingi (the parliament of Iceland) so resolved. Additionally, the majority of all people in the country having the right to vote had to express their approval of the constitution by secret ballot. Over 98 per cent of the electorate participated in the referendum and the constitution was approved with 95 per cent of the vote. The constitutional committee responsible for drafting the original constitution of 1944 consisted of eight representatives (members of parliament and the mayor of Reykjavík) who were elected by the Alþingi. Moreover, a drafting process to reform the constitution in the aftermath of the financial crisis in 2008 should have been accompanied by a popular participation, consisting of a group of 25 elected persons. The draft was submitted to the Alþingi in 2011 but was blocked by the parliament in 2013 and has thus not (yet) come into force.

5.  Ratification after a Process of (Re-)Unification

38.  The ratification of a constitution after a (re-)unification of a state is closely related to the ratification of a constitution uniting federal states. For example, Section 3 of the Preamble of the Constitution of the Republic of Latvia: 15 February 1922 (as Amended to 15 November 2005) (Lat) recapitulates: ‘[t]he people of Latvia won their State in the War of Liberation. They consolidated the system of government and adopted the Constitution in a freely elected Constitutional Assembly’. Comparably, Article 1 of the Constitution of Malaysia: 31 August 1957 (as Amended to 27 December 2007) (Malay) mentions the federation of Malaysia.

6.  Ratification by a Constitutional Assembly

39.  The ratification of a constitution by a constitutional assembly is a common way to establish a constitutional ratification by representatives who are elected by a popular vote or determined by a special procedure (see constituent assemblies). For example, the last sentence of the Preamble of the Constitution of the State of Eritrea: 23 May 1997 (Eri) refers to such an assembly: the people, ‘after active popular participation, approve and solemnly ratify, through the Constituent Assembly’ the constitution. In a similar way, the Preamble of the Constitution of the Federal Democratic Republic of Ethiopia: 21 August 1995 (Eth) describes that ‘[w]e, the Nations, Nationalities and Peoples of Ethiopia’ have ‘therefore adopted, on 8 December 1994[,] this Constitution through representatives we have duly elected for this purpose as an instrument that binds us in a mutual commitment to fulfil the objectives and the principles set forth above’. The Preamble of the Constitution of the Republic of Guinea-Bissau: 16 May 1984 (as Amended to 1996) (Guinea-Bissau) describes that the National Popular Assembly ‘acting as a faithful interpreter of the will of the People and exercising its responsibilities as the highest sovereign organ’, approved and adopted the constitution. The Preamble of the Constitution of the Republic of India: 26 January 1950 (as Amended to 28 May 2015) (India) also refers to the Constitutional Assembly of 26 November 1949. The same is true for the Constitution of the Republic of Latvia. The Constitution of the Republic of Maldives: 7 August 2008 (Maldives) had to be approved by the Special Majlis, an assembly tasked with the drafting of the constitution (Art. 293 lit. a Constitution of the Maldives; an additional requirement was the assent of the president). The Preamble of the Constitution of the Republic of Nauru: 29 January 1968 (as Amended to 17 May 1968) (Nauru) refers to the Constitutional Convention of 29 January 1968, which adopted and enacted the constitution. The Preamble of the Constitution of the Independent State of Papua New Guinea: 16 September 1975 (as Amended to 2002) (Papua NG) names the Constituent Assembly of 15 August 1975 as constituent power. The Preamble of the Constitution of the Republic of Paraguay: 20 June 1992 (as Amended to 8 November 2011) (Para) refers to ‘the legitimate representatives meeting in Constituent National Convention’ in Asunción on 20 June 1992. The Preamble of the Constitution of Peru names the ‘Democratic Constituent Congress’ which resolved to enact the constitution but refers to a referendum approving the constitution in its 14th transitional provision. The preamble of the Constitution of the Portuguese Republic (Sixth Revision): 2 April 1976 (as Amended to 24 July 2004) (Port) describes that ‘meeting in plenary session on 2 April 1976, the Constituent Assembly does hereby pass and decree’ the constitution. The Preamble of the Constitution of the Independent State of Samoa: 28 October 1960 (as Amended to 25 January 2005) (Samoa) refers to the Constitutional Convention held on 28 October 1960. Article 138 Section 1 of the Constitution of Samoa names the ‘approval by a National Constituent Assembly convened in terms of the Roadmap Agreement, the Garowe I and Garowe II Principles, the Galkayo and the Addis Ababa Agreements, the Presidential Decree and the relevant Protocols’ as the source of constituent power. The preamble of the Constitution of the Republic of China: 25 December 1947 (as Amended to 10 June 2005) (Taiwan (disputed)) refers to the ‘National Constituent Assembly of the Republic of China, by virtue of the mandate received from the whole body of citizens, in accordance with the teachings bequeathed by Dr Sun Yat-sen in founding the Republic of China’. The Constitution of the Democratic Republic of Timor-Leste: 20 May 2002 (Timor-Leste) names the ‘Constituent Assembly, meeting in plenary session on 22 March 2002’ as constituent power.

40.  The preamble of the Constitution of the Tunisian Republic: 26 January 2014 (Tunis) calls the National Constituent Assembly established after the revolution of the so-called Arab Spring as its source. The Preamble of the Constitution of the Republic of Uganda: 22 September 1995 (as Amended to 2005) (Uganda) refers to the Constituent Assembly adopting the Constitution on 22 September 1995. The Preamble of the constitutional declaration of Libya refers to the National Transitional Council, which promulgated the constitutional declaration. Article 202 et seq (Chapter II of part 16) of the Constitution of South Sudan establish the system of a national constitutional review commission and a national constitutional conference. This was based on Article 226 Section 10 of the Constitution of Sudan (Interim National Constitution of the Republic of Sudan: 6 July 2005) (Sudan)) which says that if ‘the outcome of the referendum on self-determination favours secession, the parts, Chapters, Arts, sub-Arts and schedules of this Constitution that provide for southern Sudan institutions, representation, rights and obligations shall be deemed to have been duly repealed’ (see for further details Seidel 3 et seq).

41.  Sections 32 et seq of the Constitution of the Kingdom of Thailand (B.E. 2550): 24 August 2007 (Thai) established the Constitution Drafting Committee, which prepared the draft constitution, consisting of 36 members appointed chairperson of the National Reform Council, and proposed the draft constitution to the National Reform Council for deliberation within 120 days as from the date of receipt of the advice or recommendation of the National Reform Council. Section 35 contains detailed matters which should be regulated by the constitution. Sections 36 et seq. set forth the procedure of enacting the draft constitution.

42.  A comparable provision is Article 120 Section 2, 3, and 4 of the Constitution of the Socialist Republic of Vietnam: 18 April 1992 (as Amended to 25 December 2001) (Viet), which establishes a Committee of Constitutional Drafting. It drafts and organizes the collection of people’s opinion, and submits to the National Assembly the draft constitution. According to Article 120 Section 4, the constitution shall be enacted with the approval of two-thirds of all Assembly deputies. The National Assembly shall decide the referendum on the constitution.

7.  Ratification by an (Existing) Parliament or Constitutional Convention

43.  In constitutional theory, Sieyès rejected the idea that the powers of the constituent assembly and the ‘ordinary’ assembly could be merged, because this would entitle the latter to define its own competences (Sieyès 126 et seq). However, constitutional practice shows that some examples exist in which the constituent and the regular legislative powers were merged and the (theoretical) dichotomy between constituent and constituted powers was blurred. As the constituent power is free to adopt its rules and to define the organs operating the ratification of the constitution, a strictly clear dichotomy of ‘pouvoir constituant’ and ‘pouvoir constitué’ in the sense of a discontinuity or ‘nativeness’ of the organ(s) establishing the constitution as proposed by Sieyès is not necessary. In this sense, the comparative-positivist approach to the term ‘ratification of a constitution’ as proposed above becomes relevant.

44.  The Constitution of the Czech Republic: 16 December 1992 (as Amended to 14 November 2002) (Czech) has been adopted by ‘freely-elected representatives’ mentioned in the last sentence of the preamble. As Article 151 of the Constitution of the Republic of Croatia: 2 December 1990 (as amended to 6 July 2010) (Croat) states, the Croatian parliament shall pass the Constitutional Act on the Implementation of the Constitution of the Republic of Croatia. According to Section 2 of the closing provisions of the Constitution of the Republic of Hungary: 18 April 2011 (as Amended to 26 September 2013) (Hung), the Fundamental Law shall be adopted by the National Assembly pursuant to Sections 19(3)(a) and 24(3) of Act XX of 1949. The Constitution of the Islamic Republic of Pakistan: 12 April 1973 (as Amended to 19 April 2010) (Pak) invokes representatives in the National Assembly who adopted and enacted the constitution. According to Article 133 of the Constitution of the Republic of Macedonia: 17 November 1991 (as Amended to 12 April 2011) (Maced), a Constitution Act shall be adopted for the implementation of the constitution by a two-thirds majority vote of the total number of representatives. The Constitution Act is declared by the Assembly and comes into force simultaneously with the declaration of the constitution. According to Title VII Article I Section 1, the Constitution of the Dniester Moldavian Republic: 24 December 1995 (as Amended to 29 June 2011) had to be adopted by the parliament. Article 201 of the Constitution of the Republic of South Sudan: 9 July 2011 (as Amended to 1 March 2013) (South Sudan) refers to the Southern Sudan Legislative Assembly, which adopted the amended Interim Constitution of Southern Sudan: December 2005 (South Sudan) which was thereafter known as the Transitional Constitution of the Republic of South Sudan of 2011 (Transitional Constitution of South Sudan, 2011 (Amendment) Act, 2013: 1 March 2013) (South Sudan)).

8.  Ratification and Permanence of the Constitution

45.  The once-ratified constitution may be modified, either in the form of a textual alteration or the form of an amendment. As the act of ratification sets the first stage of the normative existence of the legal text of the constitution, the ratification itself cannot anticipate the form and the possibility of constitutional modification. This is the genuine task of the established constituted powers, which have to act according to the amendment procedures set out in the ratified constitution. The incidence and frequency of constitutional changes can be an indicator of the stability of the constitutional system. The relation between the source of law and its reversibility is a graduator of the theory of constitutional law (see Kelsen 196 et seq, 228 et seq; Smend 137 et seq). High quotas or other strict requirements of a referendum may cement the existing constitutional order, as it is the case for example in the US (see supra ‘Ratification by Federal States’).

46.  Two opposite examples may illustrate the variety of stability and flexibility of constitutional norms (see Grimm 139 et seq; Roznai 15 et seq; see also rigid (entrenched) / flexible constitutions). On the one hand, the Constitution of Japan: 3 November 1946 (Japan) enacted on 3 May 1947 remained unchanged for more than 70 years till the reform project modifying the ‘peace clause’ of Article 9, establishing a pacific constitution, was started on 1 July 2014 by the cabinet of Shinzo Abe (see Hahm and Kim 69 et seq). On the other hand, for example, the German Basic Law has gone through 60 modifications from 1949 to the beginning of 2017, which equates on average to nearly one modification per year. The more aspects a constitution adjusts, the more the high adaptability of the constitutional text has to be guaranteed: a direct correlation of the ‘precision of a constitution and the need for amendment’ has to be assumed (Grimm 139).

E.  The Expression of the Ratification in the Constitution

1.  Reference to the Ratification in the Preamble: the ‘Invocatio Populi’

47.  Numerous constitutions refer to the act of the promulgation of the constitution in their preamble as a kind of introductory statement. Conventionally, the preamble expresses the self-government by the people in the form of the constituent power: the recourse to the people is an identification of the sovereign power. As a semantic allusion to the (anciently) widely and today rather sporadically used form of an ‘Invocatio Dei’ (invocation of God), this form of invocation of the sovereignty of the people may be called an ‘Invocatio Populi’ (Isensee 24). The reification of the people expressed by the preamble emphasizes the autonomy and sovereignty of the people, which has its famous archetype in the constitutional moment articulated by the Preamble of the US Constitution (‘[w]e the People …’) (see Ackerman 3 et seq, 34 et seq). In this sense, preambles of constitutions act ‘as imaginary repositories for the aspirations of the society they constitute; they assure citizens of their collective, constitutionally-based identity’ (von Arnauld 312).

48.  Contrarily, even constitutions of military dictatorships or states with a despotic government sometimes rely on a reference to the people (Isensee 22 with the examples of the Constitution of Turkey of 1982, Portugal of 1976, and the Constitution of the German Democratic Republic of 1949). In consequence, the reference to the people in the preamble gives, taken for itself, no valid information regarding the process of ratification of a constitution. For example, the Constitution of the Kingdom of Swaziland (Act No. 1 of 2005): 4 October 2004 (Swaz) refers to a legitimation of the state’s action by the people although Swaziland is an absolutistic state (absolutism). Apparently, a reference to the ratification by ‘the people’ is a ubiquitous element of modern constitutionalism, rather independent from the geographic location or the history of a state.

49.  As the list of constitutions containing a preamble referring to the ratification is quite exhaustive (see infra), some examples may give an impression of this technique:

  • •  The Preamble of the Constitution of the Islamic Republic of Afghanistan: 3 January 2004 (Afg) both contains, in its first clause, a reference to the people (‘[w]e the people of Afghanistan’) and, in its last clause, the exact circumstances under which the constitution was approved.

  • •  The preamble of the Constitution of the Republic of Angola: 21 January 2010 (Angl), too, describes the process of ratification: ‘[w]e, the people of Angola, through its lawful representatives, the legislators of the nation, freely elected in the parliamentary elections of September 2008 . . . We hereby pass this Constitution as the Supreme and Fundamental Law of the Republic of Angola’.

  • •  The Preamble of the Constitution of the Argentine Nation: 23 August 1994 (Arg) reads as following: ‘[w]e, the representatives of the people of the Argentine Nation, assembled in General Constituent Congress by the will and election of the provinces which compose it … do ordain, decree and establish this Constitution for the Argentine Nation’.

  • •  The Preamble of the Constitution of the People’s Republic of Bangladesh: 16 December 1972 (as Amended to 30 June 2011) (Bangl) states in a precise manner: ‘[i]n our Constituent Assembly, this eighteenth day of Kartick, 1379 BS corresponding to the fourth day of November 1972 AD, do hereby adopt, enact and give to ourselves this Constitution’.

50.  Besides these examples, the following constitutional preambles contain—in a comparable and largely even similar manner—an invocation of the sovereign people approving the constitution. These are the Constitution of the Republic of Albania: 21 October 1998 (as Amended to 18 September 2012) (Alb) (‘[w]e, the people of Albania, proud and aware of our history, with responsibility for the future, and with faith in God and other universal values … We establish this Constitution’), Andorra, Armenia, Azerbaijan, Barbados, Belarus, Belize, Benin, Bhutan, Brazil, Bulgaria, Burkina Faso, Burundi, Cambodia, Cameroon, Colombia, Costa Rica, Côte D’Ivoire, Cuba, Czech Republic, Democratic Republic of the Congo, Dominican Republic, Egypt, El Salvador, Equatorial Guinea, Ethiopia, Eritrea, Fiji, France, Gabon, Gambia, Georgia, Germany, Ghana, Grenada, Guatemala, Guinea, Guyana, Haiti, Honduras, Hungary, India, Indonesia, Ireland, Japan, Kazakhstan, Kenya, Kiribati, Kyrgyzstan, Latvia, Liberia, Madagascar, Malawi, Mali, Marshall Islands, Federated States of Micronesia, Mongolia, Nepal, Nicaragua, Niger, Nigeria, Palau, Papua New Guinea, the Philippines, Poland, Portugal, Russian Federation, Rwanda, Samoa, Saint Kitts and Nevis, Saint Lucia, Saint Vincent and the Grenadines, Senegal, Seychelles, Slovakia, Slovenia, Solomon Islands, South Africa, South Sudan, Spain, Sri Lanka, Sudan, Suriname, Swaziland, Switzerland, Tajikistan, Togo, Trinidad and Tobago, Tunisia, Turkey, Turkmenistan, Tuvalu, Uganda, Ukraine, Uzbekistan, Vanuatu, Venezuela, Zambia, and Zimbabwe.

2.  Regulation of the Ratification in Final or Transitional Provisions

51.  The most common way to arrange the details of the ratification is to place these rules in the final or transitional provisions of the constitution itself. Logically, in general these provisions are located at the end of the text of the constitution, either in the final provisions or an addendum which is entitled ‘final’ or ‘transitional provisions’. Some examples in the following may stand pars pro toto for the complete list of the regulation of the ratification of constitutions: the final provision of the Constitution of Andorra offers every detail of the constitutional ratification: ‘[a]nd we the Coprinces, after the adoption of the Constitution by the Consell in a solemn session on the second day of February of 1993, and after its approval by the Andorran People in the referendum held on the fourteenth day of March of 1993, make it ours, ratify, sanction and enact it, and, for general cognizance, we do order its publication. Casa de la Vall, the twenty-eighth day of April of 1993’.

52.  The Transitional Provisions of the Constitution of Argentina, in its paragraphs 16 and 17, arrange the details of the effects of the ratification. The Final Provisions (Art. 149 et seq) of the Federal Constitutional Law of the Republic of Austria: 1 October 1920 (as Amended to Federal Act No. 65/2012 of 25 July 2012) (Austria) fix in a very detailed manner the dates of the entry-into-force of those provisions which are regarded as parts of constitutional law. The first Transitional Provision of the Constitution of Azerbaijan determines that the constitution shall come into force after the acceptance by (referendum) on the day of its official publication. Article 141 of the Constitution of the Republic of Belarus: 27 November 1996 (Belr) determines that the constitution together with its alterations and addenda enters into force on the day on which it is promulgated ‘apart from the specific provisions thereof, that are to enter into force under the procedure and at the times specified in the present [c]onstitution’.

53.  Rather exceptional are provisions regarding the implementation of the constitution which delegate the power of determining the establishment to statutory law. For example, according to its Chapter 13 section 130, the Constitution of the Republic of Finland: 11 June 1999 (as Amended to 2007) (Fin) entered into force on 1 March 2000, whereas detailed ‘provisions necessary for the implementation of the [c]onstitution are laid down by an Act’.

54.  An extraordinary way of establishing the constitution is to set the ratification under the condition of another event or action. The Constitution of Georgia: 24 August 1995 (as Amended to 15 October 2010) (Geor) entered, according to its Article 104(1), into force ‘upon the date of recognising the powers of the newly elected President and the Parliament of Georgia’, whereas, according to Article 104(2), Articles 49, 50, and 70 of the Georgian Constitution entered into force after the constitution was promulgated. The Israeli Basic Law: The Governmment: 28 January 2003 (Isr), according to its Article 47, applied ‘to elections and to formation of the [g]overnment, beginning with elections to the 16th Knesset’.

55.  Article 201 Section 1 of the Constitution of South Sudan makes legal arrangements concerning the declaration of independence of the state in 2011. The president had to ‘assent to and sign into law the amended Interim Constitution of Southern Sudan, 2005, after its adoption by the Southern Sudan Legislative Assembly, which shall thereafter be known as the Transitional Constitution of the Republic of South Sudan, 2011’. Article 201 Section 2 further states that the constitution shall remain in force until the adoption of a permanent constitution. For this process, the constitution offers a catalogue of procedural rules in Article 202 et seq (chapter II of part 16 of the South Sudan Constitution).

56.  Other examples of a fixation of the ratification and entry into force of the constitution in final or transitional provisions are the following (see, additionally, infra ‘The Promulgation and the Point in Time of the Establishment of a Constitution’): title IX of the Coordinated Constitution of the Kingdom of Belgium: 17 February 1994 (as Amended to 31 January 2014) (Belg); Article 157 of the Constitution of Bénin (promulgation within eight days after its adoption in the referendum); the final provision of the Constitution of the Pluri-National State of Bolivia: 25 January 2009 (Bol); Article 169 of the Constitution of Burkina Faso (promulgation within twenty-one days following its adoption by referendum); the final clause of the Constitution of the Dominican Republic: 26 January 2010 (Dom Rep) (entered into effect starting from its proclamation by the National Assembly and its full and immediate publication ordered); the Final Provision of the Constitution of Ecuador; Article 21 of the transitional provisions of the Constitution of the Republic of Guatemala: 31 May 1985 (as Amended to 17 November 1993) (Guat); Article 153 of the Constitution of Romania; Section 2 cl. 1 of the Constitution of Russia; the Final Provision of the Constitution of Spain; Article 186 of the Constitution of Suriname.

3.  Special Constitutional Law to Enact the Ratification

57.  A specific and comparatively rare form of the establishment of constitutional norms is to delegate the decision to the legislator which itself was created by the constitution. As, for example, Article 158 of the Constitution of the Republic of Montenegro: 19 October 2007 (Montenegro) requires, the constitutional law shall be adopted for the enforcement of the constitution by the parliament with a majority vote of all the members of the parliament. It was proclaimed and came into effect concurrently with the constitution. This constitutional law contains 16 articles which precisely contour the process of ratification.

4.  Non-Regulation of the Ratification in the Text of the Constitution

58.  Lastly and exceptionally, the act of constitutional ratification may not be expressly regulated in the text of the constitution. For example, the Federal Constitutional Law of Austria (Federal Constitutional Law of the Republic of Austria: October 1, 1920 (as Amended to Federal Act No. 65/2012 of July 25, 2012)) contains no clause regarding the enactment of the constitution.

F.  The Promulgation and the Point in Time of the Establishment of a Constitution

59.  Regularly, the moment of the ratification of a constitution doesn’t exactly coincide with the point in time of its establishment. Usually, the moment of its effectiveness follows the act of the ratification by defining a distinct date of coming into force of the constitution. In short terms, the ratification results in and causes the establishment of a constitution, but isn’t equivalent to it. The most common way to determine the legal validity of the constitution is to order its publication in an official gazette or an official journal and to determine the point in time of the establishment. Most commonly, this is the day of or the day after the promulgation.

60.  This technique of declaring the effects of the ratification is implemented by many constitutions: according to the Final Provision of the Constitution of Andorra, the constitution ‘shall come into effect immediately upon its publication in the Official Gazette of the Principality of Andorra’. The Constitution of Afghanistan determines in its Article 162 cl. 1: ‘[t]his Constitution shall be enforced from the date of approval by the Loya Jirga, and endorsed and proclaimed by the President of the Islamic Transitional Government of Afghanistan’. Article 183 of the Constitution of Albania determines that the constitution ‘becomes effective with its promulgation by the President of the Republic’. Article 125 of the Constitution of the State of Bahrain: 14 February 2002 (Bahr) follows this classic arrangement by stating that the ‘amended Constitution shall be published in the Official Gazette, and shall be effective from the date of its publication’. Another example of a precise determination is Article 153 of the Constitution of Bangladesh: ‘[t]his Constitution may be cited as the Constitution of the People’s Republic of Bangladesh and shall come into force on the sixteenth day of December 1972, in this Constitution referred to as the commencement of this Constitution’. According to its Article 141, the Constitution of Belize: 20 September 1981 (as Amended to 25 October 2011) (Belize) shall ‘come into operation on Independence Day’. According to its Article 307, the Constitution of the Republic of Burundi: 18 March 2005 (Burundi) ‘enters into force the day of its promulgation’. According to its Article 154, the Constitution of the Kingdom of Cambodia: 21 September 1993 (as Amended to January 2008) (Cambodia) ‘after its adoption, shall be declared by the King of Cambodia to be in force with immediate effect’. According to its Article XVI, the Constitution of the Federated States of Micronesia: 1 January 1981 (as Amended to 29 August 1990) (Micr) took effect ‘one year after ratification unless the Congress of Micronesia by joint resolution specifies an earlier date’. The article further contains a reservation of validity: ‘[i]f a provision of this Constitution is held to be in fundamental conflict with the United Nations Charter or the Trusteeship Agreement between the United States of America and the United Nations, the provision does not become effective until the date of termination of the Trusteeship Agreement’.

61.  Sometimes, the way of operating or formally ‘executing’ the ratification is described in a very detailed manner. For example, Title V Article 20 of the Constitution of Paraguay states that the ‘President and secretaries of the National Constituent Assembly will sign all of the pages of the original of this Constitution. The single document, which may also be signed by any Constituent Assembly delegate, will be then entrusted to the legislative branch for safe keeping’.

62.  Other examples for the regulation of the time of entry-into-force and the way of promulgation are:

  • •  Art. 380 Constitution of the Republic of Colombia: 5 July 1991 (as Amended to 4 November 2011) (Colom);

  • •  Art. 229 Constitution of the Democratic Republic of the Congo;

  • •  Art. 108 Constitution of the Central African Republic: 5 December 2004 (Cent Afr Rep);

  • •  Art. 128 Constitution of Côte D’Ivoire (entered into force from the day of its promulgation);

  • •  Art. 274 Constitution of the Republic of El Salvador: 15 December 1983 (as Amended to 27 May 2009) (El Sal) (became effective ‘on 20 December 1983, after publication in the Official Gazette on 16 December 1983’);

  • •  Art. 119 and 120 Constitution of the Gabonese Republic: 26 March 1991 (as Amended to 22 April 1997) (Gabon);

  • •  Art. 120 Constitution of the Hellenic Republic: 7 June 1975 (as Amended to 27 May 2008) (Greece);

  • •  Art. 162 Constitution of the Republic of Guinea: 7 May 2010 (Guinea);

  • •  the Preamble of the Constitution of Guinea-Bissau;

  • •  Art. 298 Constitution of Haiti;

  • •  Art. 379 Constitution of the Republic of Honduras: 11 January 1982 (as Amended to 30 January 1991) (Hond);

  • •  the first clause of the closing provisions of the Constitution of Hungary;

  • •  Art. XVIII Transitional Provisions of the Constitution of the Italian Republic: 22 December 1947 (as Amended to 20 April 2012) (It);

  • •  Art. 130 Constitution of the Hashemite Kingdom of Jordan: 1 January 1952 (as Amended to 28 August 2014) (Jordan);

  • •  Art. 90 of the Constitution of Kazakhstan;

  • •  Art. 182 Constitution of the State of Kuwait: 11 November 1962 (Kuwait);

  • •  Art. 98 Constitution of the Lao People’s Democratic Republic: 15 August 1991 (as Amended to 6 May 2003) (Laos);

  • •  Art. 134 Constitution of Macedonia;

  • •  Art. 212 Constitution of the Republic of Malawi: 16 May 1994 (as Amended to 2010) (Malawi);

  • •  Art. 1 Transitory Rules of the Political Constitution of the United Mexican States: 5 February 1917 (as Amended to 24 February 2017) (Mex);

  • •  Title VII Art. I s 2 Constitution of the Republic of Moldova: 29 July 1994 (as Amended to 25 July 2003) (Mold);

  • •  Art. 96 Constitution of the Principality of Monaco: 17 December 1962 (as Amended to 2 April 2002) (Monaco);

  • •  Art. 206 Constitution of the Republic of Mozambique: 30 November 1990 (Mozam);

  • •  Art. 196 and 202 Political Constitution of the Republic of Nicaragua: 19 November 1986 (as Amended to 29 January 2014) (Nicar);

  • •  Art. XV s1 Constitution of the Republic of Palau: 1 January 1981 (as Amended to 4 November 1992) (Palau);

  • •  Art. 324 Constitution of the Republic of Panama: 11 October 1972 (as Amended to 27 July 2004) (Pan);

  • •  Title V Art. 1 Constitution of Paraguay;

  • •  Art. 243 Constitution of the Republic of Poland: 2 April 1997 (Pol);

  • •  Art. 296 Constitution of Portugal;

  • •  Art. 141 Constitution of the State of Qatar: 29 April 2003 (Qatar) (the Prince promulgates the constitution);

  • •  Art. 177 Constitution of Rwanda;

  • •  Art. 127 Constitution of São Tomé and Príncipe;

  • •  Art. 108 Constitution of Senegal;

  • •  Art. 206 Constitution of the Republic of Serbia: 30 September 2006 (Serb);

  • •  Art. 156 Constitution of the Slovak Republic: 1 September 1992 (as Amended to 1 May 2006) (Slovk);

  • •  Art. 172 Constitution of the Republic of Slovenia: 23 December 1991 (as Amended to 27 February 2003) (Slovn);

  • •  Art. 243 Constitution of the Republic of South Africa: 16 December 1996 (as Amended to 1 February 2013) (S Afr);

  • •  Art. 198 Constitution of South Sudan;

  • •  Final Provision of the Constitution of Spain;

  • •  Art. 172 Constitution of the Democratic Socialist Republic of Sri Lanka: 31 August 1978 (as Amended to 15 May 2015) (Sri Lanka);

  • •  Art. 186 Constitution of Suriname;

  • •  Art. 157 Constitution of Syria;

  • •  Art. 170 Constitution of the Democratic Republic of Timor-Leste;

  • •  Art. 147 Constitution of Tunisia;

  • •  Art. 177 Constitution of Turkey;

  • •  Art. 152 Constitution of the United Arab Emirates: 18 July 1971 (as Amended to 2004) (UAE);

  • •  Art. 152 s2 Constitution of the United Republic of Tanzania: 26 April 1977 (as Amended to 2005) (Tanz);

  • •  the Final Provision of the Constitution of Venezuela; and

  • •  part 2 of the sixth schedule Constitution of the Republic of Zimbabwe: 22 May 2013 (Zim).

G.  Legal Consequences of the Ratification

1.  Applicability, Validity and Primacy of the Constitution

63.  In general, the ratification of a constitution confirms and documents its validity and operates its applicability. Consequently, the ratification is the original cause of the constitution. The public promulgation additionally induces the authentication of the text in force. In the context of this process, the ratified and the promulgated text have to be identical to express the act of ratification in the accurate and pertinent form of the promulgation. In addition to this documentary function of the ratification, several legal effects may be obtained by the entering-into-force of the constitution.

64.  Particularly, the ratification of the constitution establishes and enacts the supremacy / primacy of constitutional law. This supreme power of constitutional law is only in rare cases directly linked with the ratification; it either results from an express constitutional provision or implicitly is essential for the effectiveness of the constitution. Even if a constitution contains no statement regarding its primacy, the function of a constitution requires this paramount position in the hierarchy of legal texts (this is the reasoning of the Supreme Court of the United States in Marbury v Madison Case (US) (1803)). As an example of a direct linkage between the ratification and the activation of primacy, Article 162 cl. 2 of the Constitution of Afghanistan states that, upon the enforcement of the constitution, ‘laws and legislative decrees contrary to its provisions shall be invalid’. A similar provision can be found in Article 112 of the Constitution of the Princely House of Liechtenstein: 26 October 1993 (Liech), according to which the constitution ‘shall be universally binding after its promulgation as a fundamental law of the country’. Comparable rules are expressed in:

  • •  Art. 5(1) Constitution of the Republic of Bulgaria: 12 July 1991 (as Amended to 6 February 2007) (Bulg);

  • •  Art. 5(1) Constitution of the Republic of Croatia: 2 December 1990 (as amended to 7 May 2001) (Croat);

  • •  Art. 2 Constitution of the Republic of Mauritius: 12 March 1968 (as Amended to 2015) (Mauritius);

  • •  Art. II s1 Constitution of the Federated States of Micronesia;

  • •  Art. 2 Constitution of Nauru;

  • •  Art. 79 Constitution of the Federal Democratic Republic of Nepal: 20 September 2015 (2072) (Nepal);

  • •  Art. 2 Report of the Solomon Islands Constitutional Conference: 16 September 1977 (UK);

  • •  Art. 159 Constitution of the Togolese Republic: 27 September 1992 (as Amended to 7 February 2007) (Togo);

  • •  Art. 115 Constitution of Turkmenistan: 18 May 1992 (as Amended to 15 August 2003) (Turkm);

  • •  Art. 151 Constitution of the United Arab Emirates; and

  • •  Art. 119 s1 Constitution of the Socialist Republic of Vietnam: 28 November 2013 (Viet).

2.  Commencement of Constitutionally Established Organs

65.  Another regular effect of the establishment of a constitution is the enactment of the official organs of the state. As many constitutions implicitly presuppose this institutional part of the commencement of action, for example Article 67 of the Constitution of Cameroon explicitly describes the process of establishment of the institutions: ‘[t]he new institutions of the Republic provided for under this Constitution shall be set up progressively’. Similar provisions are, for example:

  • •  Art. 166 Constitution of Madagascar: 11 December 2010 (Madag);

  • •  Art. 2 et seq Transitory Provisions of the Mexican Constitution;

  • •  the Eighth Transitional Provision of the Constitution of Spain;

  • •  Art. 184 Constitution of Suriname; and

  • •  Chapter XV s2 et seq Constitution of Ukraine: 28 June 1996 (as Amended to 8 December 2004) (Reinstated 21 February 2014) (Ukr).

66.  Another way to establish a replacement or transition of one constitutional system into another is to determine the interim action of state organs. For example, the first clause of the transitional provisions of the Constitution of Equatorial Guinea states that: ‘[u]ntil the new Institutions and Organs created by this Fundamental Law are placed in functioning, those actually existing remain in force’. In a comparable manner, the first article of the transitional provisions of the Constitution of the Republic of Indonesia: 18 August 1945 (as Amended to 17 August 2002) (Indon) orders that all existing state institutions shall remain in place in order to implement the provisions of the constitution ‘as long as new state institutions are not yet established in conformity’ with the constitution. According to Article 294(a) of the Constitution of the Maldives, ‘the People’s Majlis in existence at the commencement of this Constitution shall continue until such time as the first elections of the People’s Majlis under this Constitution are held, and election of members and assumption of office by the members’. According to Article 168 of the Constitution of the Democratic Republic of Timor-Leste, the government ‘appointed under UNTAET Regulation No. 2001/28 shall remain in office until the first Constitutional Government is appointed and sworn in by the President of the Republic, in conformity with the Constitution’. Similar rules can be found in:

  • •  Title VII Art. III Constitution of Moldova;

  • •  Art. 176 Constitution of the Kingdom of Morocco: 1 July 2011 (Morocco);

  • •  Title V Art. 3 Constitution of Paraguay;

  • •  Art. 262 et seq of the Constitution of Swaziland;

  • •  Art. 2 Constitution of the Republic of Zimbabwe: 22 May 2013 (Zim).

3.  Abrogation, Repeal or Invalidation of a Former Constitution or Constitutional Acts

67.  Another effect of the establishment of a new constitution can be the annulment or the declaration of the invalidity of the former constitution. Whereas this caducity of the old constitution is, in principle, implicitly manifested by the act of ratification of the new constitution itself, some constitutions expressly state the nullity of the former constitution. For example, the second clause of the first transitional provision of the Constitution of Azerbaijan declares that the ‘Constitution (Fundamental Law) of the Republic of Azerbaijan which was adopted on the 21st of April 1978 loses its force on the same day’. Other examples for the declaration of invalidity of a former constitution are:

  • •  Art. 141 Constitution of Belarus;

  • •  the Abrogating Provision of the Constitution of Bolivia;

  • •  Art. 9 Transitional and Concluding Provisions of the Constitution of Bulgaria;

  • •  Art. 306 Constitution of Burundi;

  • •  Art. 380 Constitution of Colombia;

  • •  Art. 197 Constitution of the Republic of Costa Rica: 7 November 1949 (as Amended to 15 July 2003) (Costa Rica);

  • •  Art. 107 Constitution of the Central African Republic;

  • •  Chapter 13 s131 Constitution of Finland;

  • •  Art. 119 Constitution of Gabon;

  • •  s232 and Schedule 2 cl. 15 Constitution of the Republic of The Gambia: January 16, 1997 (as Amended to 2017) (Gambia);

  • •  Art. 22 of the transitional provisions Constitution of Guatemala;

  • •  s26 of the Closing Provisions of the Constitution of Hungary (detailed catalogue of acts which shall be repealed);

  • •  Art. 46 Constitution of Israel (Basic Law: The Knesset);

  • •  Art. 129 Constitution of Jordan;

  • •  Art. 264 Constitution of Kenya;

  • •  Art. 95 Constitution of the Republic of Liberia (Approved Revised Draft): 3 July 1984 (Liber);

  • •  Art. 34 Constitution of Libya;

  • •  Art. 114 Constitution of Liechtenstein;

  • •  Art. 117 Constitution of the Grand Duchy of Luxembourg: 17 October 1868 (as Amended to 12 March 2009) (Lux);

  • •  Art. 293 lit. b Constitution of the Maldives;

  • •  the Sixteenth Transitional Provision Constitution of Peru;

  • •  Art. XVIII s27 Constitution of the Philippines;

  • •  Art. 242 Constitution of Poland;

  • •  Art. 150 Constitution of Qatar;

  • •  Art. 143 Constitution of Somalia;

  • •  Art. 171 Constitution of Sri Lanka; and

  • •  Art. 182 Constitution of Suriname.

4.  Continuity of Existing Law

68.  Not necessarily in contradiction to a (partial) repeal of a former constitution, a constitution may order the continuing validity of constitutional and especially statutory norms (or parts of them respectively), as for example Article 296 of the Constitution of Haiti does: ‘[a]ll Codes of Law or Handbooks of Justice, all laws, all decree laws and all decrees and orders currently in force shall be maintained in all matters not contrary to this Constitution’. In consequence, the former norms are overridden following the rule ‘lex posterior derogat legi priori’. Similar provisions are contained in:

  • •  Art. 376 Constitution of Honduras;

  • •  s8 of the Closing Provisions of the Constitution of Hungary;

  • •  Art. 313 Constitution of India;

  • •  Art. 48 Constitution of Ireland (repeal of the ‘Constitution of Saorstát Éireann in force immediately prior to the date of the coming into operation of this Constitution and the Constitution of the Irish Free State (Saorstát Éireann) Act, 1922,’);

  • •  Art. 128 s2 Constitution of Jordan;

  • •  Art. 102 Constitution of the Lebanese Republic: 23 May 1926 (as Amended to 4 September 2004) (Leb);

  • •  Art. 166 Constitution of the Kingdom of Lesotho: 2 April 1993 (as Amended to 10 June 2011) (Lesotho);

  • •  Art. 165 Constitution of Madagascar;

  • •  Art. 291 Constitution of the Maldives;

  • •  Art. 119 Constitution of Mali;

  • •  Art. 102 Constitution of Mauritania;

  • •  Art. 140 Constitution of the Republic of Namibia: 21 March 1990 (as Amended to 13 October 2014) (Namib);

  • •  Art. 85 Constitution of Nauru;

  • •  Art. 182 Constitution of Niger;

  • •  Art. 77 of the Basic Statute of the Sultanate of Oman: 6 November 1996 (Oman);

  • •  Art. XV s3 Constitution of Palau;

  • •  Art. 326 Constitution of Panama;

  • •  Art. 290 Constitution of Portugal;

  • •  s2 cl. 2 of the Russian Constitution;

  • •  Art. 126 Constitution of São Tomé and Príncipe;

  • •  Art. 139 Constitution of Somalia;

  • •  Art. 200 Constitution of South Sudan;

  • •  Art. 165 Constitution of the Democratic Republic of Timor-Leste: 20 May 2002 (Timor-Leste);

  • •  Art. 158 Constitution of Togo;

  • •  Chapter XV s1 Constitution of Ukraine; and

  • •  Art. 95 Constitution of the Republic of Vanuatu: 30 July 1980 (as Amended to 1983) (Vanuatu).

For example, Article 81 of the Basic Law of Saudi Arabia (Basic Regulation on Governance: 1 March 1992) (Saudi Arabia) makes a reservation regarding existing obligations deriving from public international law: ‘[t]he implementation of this law shall not violate the treaties and agreements the Kingdom has signed with other countries or with international organizations and institutions’.

69.  The continuing obligations enduring the transformation of one political entity into another are also shown by Article VI cl. 1 of the US Constitution whereby all ‘Debts contracted and Engagements entered into, before the Adoption of this Constitution, shall be as valid against the United States under this Constitution, as under the Confederation’. This continuity of financial obligations stemming from a former system can be remarked in some cases in history, for example regarding the establishment of the government of the Jacobins after the monarchy 1793 or the failed approach to effectuate a remission of debts by Lenin on the conference of Genoa in 1922 (Isensee 12).

5.  Other Effects of the Ratification

(a)  Transformation of the Constituent Power into the Legislative Power

70.  Besides these regular effects of the ratification, the constitution may establish some ‘incidental’ legal consequences. For example, some constitutions implement a decision with regard to the legal destiny of the constituent power. According to schedule 4, section 1 of the Constitution of Bangladesh, upon ‘the commencement of this Constitution, the Constitution Assembly, having discharged its responsibility of framing a Constitution for the Republic, shall stand dissolved’. Article 1 of the Transitional and Concluding Provisions of the Constitution of Bulgaria declares that the ‘Grand National Assembly shall dissolve itself after the adoption of the Constitution’. Another way is the transformation of the constituent power into the parliamentary power: for example, Article 155 of the Constitution of Cambodia states that after the constitution comes into force, the Constituent Assembly shall become the National Assembly. The same is true for the Republic of East Timor according to Article 167 of the Constitution of Timor-Leste. According to Article 296 Section 1 of the Constitution of Nepal, the ‘Constituent Assembly shall be transformed into a Legislature-Parliament, and the term of such Legislature-Parliament shall be up to 21 January 2018 AD’.

(b)  Constitutional Obligation to Adopt Laws or Regulations

71.  The constitution may also oblige the legislator to fulfil a constitutional task to pass laws, which are expressly required by constitutional provisions, as for example Article 92 of the Constitution of the Republic of Kazakhstan: 30 August 1995 (as Amended to 21 May 2007) (Kaz) does: ‘[t]he constitutional laws must be adopted within year from the day of enactment of the Constitution’. Similar rules are established by:

  • •  Art. 261 Constitution of Kenya;

  • •  Art. 184 Constitution of Niger;

  • •  Art. 78 Basic Statute of the Sultanate of Oman; and

  • •  Art. 236 Constitution of Poland.

72.  The first elections following the implementation of the constitution are another frequent topic of regulation, for example:

(c)  Exemplary Various Effects of the Ratification

73.  Lastly, the following section, which has to remain necessarily fragmentary, presents a compilation of the various effects of the ratification of a constitutionand shows a portion of the wide-ranging spectrum of legal consequences of the ratification of a constitution.

74.  Sometimes, the constitution itself protects the process of drafting of the constitution. For example, Title V Article 1 of the Constitution of Paraguay excludes the ‘process of elaboration of this Constitution, its sanction, its promulgation and the provisions that integrate it’ from jurisdictional revision.

75.  According to its Article 197, the Constitution of Nicaragua ‘shall be widely disseminated in the official language of the country. It shall also be disseminated in the languages of the communities of the Atlantic Coast’. In a similar manner, Title V Article 18 of the Constitution of Paraguay orders that the executive power has to ‘immediately provide for the official edition of 10,000 copies of this Constitution in the Spanish and Guarani languages’ and has to ensure that the ‘study of the National Constitution will be promoted through the educational system’.

76.  Another consequence of the ratification of a new constitution may be the express coping with the past (constitutional) system. For example, Article XII of the Transitional Provisions of the Constitution of Italy orders that it ‘shall be forbidden to reorgani[z]e, under any form whatsoever, the dissolved Fascist party’. The Constitution of Niger grants in its Article 185 an amnesty to the authors, co-authors, and accomplices of the coup d’état of 18 February 2010.

77.  Another example is to declare the day of promulgation the ‘Constitution Day’ and a national holiday, as Article 90 Section 2 of the Constitution of Kazakhstan does. Furthermore; Article 272 of the Constitution of El Salvador says that when the constitution becomes effective, every civil or military functionary must surrender the pledge determined in the constitution.

78.  A connection of the time of the adoption of a constitution and a tied right is the eligibility of the president of the US: according to Article II Section 1 cl. 5 of the US Constitution, no ‘[p]erson except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President’. This now-obsolete last part of the provision refers explicitly to the moment of the adoption of the constitution.

H.  Conclusion

79.  The ratification of a constitution formalizes the fundamental act of self-determination which is expressed by the establishment of a constitution. Regarding its procedural and formal dimension, the theory of constituent power is materialized in the concrete observation of how the legal applicability of a constitution is operated. The function of the ratification of a constitution is to present the constituent power in its concrete form: the ratification lets the source of constituent power appear by the act of formal validation by ratification. As the legal basis of every future legislative act and the paramount law of the land, the procedure of the ratification constitutes the pouvoir constitué originaire (the original constituted powers) by the pouvoir constituant (the constituent power), which enables the pouvoir constitué derivé (the constituted powers) to produce the law.

80.  This constitutional founding expressed by the ratification of a constitution is a ‘constitutional moment’, a legal second recording the establishment of a new constitutional order. However, it is still a demanding idea to reproduce the genesis of a constitution in a purely positivist way based on the formal process of its approval. As the drafting and ratification of a constitution are not a technical procedure but rather constitute a historical narrative, this approach necessarily has to remain fragmentary. Yet, the fact that most of the modern constitutions came into force in a peaceful and lawful way is remarkable. In contrast, this historical observation does not negate the fact that many constitutions arose after a major event of discontinuity: a war, a secession or an enduring crisis, and a subsequent downfall of a government. As could be observed, for example, in Western Europe after the Second World War, in Eastern Europe after the fall of the Iron Curtain, or in post-apartheid South Africa, in many cases it was the total breakdown of a system that brought new constitutions to life.

81.  In a global comparative view, the procedure of the ratification of a constitution shows, despite its respective historical heterogeneities, some recurring elements. Characteristically, a threefold or tripartite procedural mechanism of the establishment of a constitution is implemented, which is composed as follows: (1) drafting; (2) ratification; and (3) (public) promulgation and entering into force. In this rough-textured pattern, the formality of the process of drafting and ratification is gradually increasing: whereas the ratification and subsequent promulgation consolidate and formulize the incremental genesis of a constitution, the process of drafting is in most of the cases highly in flux.. This virtual timeline visualizes the steps of the ratification procedure as a simplifying scheme for a global comparative view of constitutional foundations.

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