Prof. Dr. Preuss: "Constitutional Court has the authority to check constitutional amendment proposals"
Prof. Dr. Ulrich Preuss from the Hertie School of Governance in Berlin was at TEPAV to deliver a seminar on the challenges and the key considerations in the constitution-making process. In his speech, Preuss maintained that Constitutional Court has the authority to check constitutional amendment proposals.
During his speech titled: "Constitution Making: Constitutional Design, Challenges, Considerations", Dr. Preuss underlined that the spirit of constitutionalism creates a system of government which excludes arbitrary rule, and embodies the self-rationalizing and self-restraining principles of popular government by subjecting political power to rules. As a text that declares the moral aspirations of the people for their future, the design of the constitution is not simply a matter of institutional engineering but of judgment about the character of the political order which fits best the needs and hopes of the people.
Each constitution is the result of a specific combination of institutional variables in different institutional spheres, Preuss said, prompting its drafters to make choices among alternatives in a number of institutional spheres, from the territorial structure of the state to the electoral system, from the character of constitutional rights to the role of religion in politics. Other issues to take into consideration in drafting a constitution are the extent of constitutional regulation and the balance between flexibility vs. rigidity in terms of changing the constitution. A prerequisite here is the reliable inclusion of a society's experience and political creativity, represented by the civil society, which would enable a process that involves segments of the populace and hence fosters popular identification with the outcome, i.e. the constitution itself.
Dr. Preuss argued against "a minimalist constitution," saying that the functional representation of civil society institutions, political parties and other actors, including the media and the religious establishment, should be secured within the constitution, as well as a bill of rights that includes basic social and economic rights. The constitution should also contain incentives to cooperate and disincentives for non-cooperation and disruptive practices, via convincing all relevant actors that a constitution represents a fair social contract that creates trust among all participants to the contract and stability of the political order. Prof. Preuss said that constitutions should be designed to allow, even encourage, dissent and non-conformism, but it should be made clear that challenging the rules of cooperation stipulated in the constitution is equal to challenging the established system of legality.
Dr. Preuss explained that the accomplishment of a constitution depends only partially upon the skilful design of its institutions, procedures and modes of operation, but that there are other, prior conditions such as the requirement that the constitutional setup be in tandem with socio-economic realities of a particular society. Further, he maintained that the political elites and the public should be aware that the constitution is not an instrument of delimitation, but an enabling device that turns the disorganized, diffuse and voiceless multitude of individuals into a collective entity which is able to form a will and to act as a collectivity. Thus, he concluded, the constitution should be promoted as the most effective instrument of transforming a split society and its centrifugal forces into a nation that is able to cope with its manifold kinds of disunity in a civilized manner.
Upon a question from a participant, Preuss addressed the authority of the Constitutional Court to check constitutional amendments and stated that constitutional courts do not have the authority to check the constitutionality of, change or cancel articles already adopted in the constitution. Preuss underlined that constitution articles moved to the agenda are first addressed as a law proposal by the legislative body and emphasized that the Constitutional Court has the authority to check and cancel, if necessary, the laws on constitutional amendments.
