Concluding Remarks

Almost diffused among European countries,^[1565] unamendable provisions may be conceived as a tool for framers to express the culture of the people, their heritage, and their expectations^[1566] at the constitution-making moment.

In other words, they are means to sanctify the fundamental elements of the constitutional culture of a country by avoiding their modifiability through the ordinary amendment procedures. As highlighted, the will to provide a more definitive protection of such core values derives from the history of the countries and from the contexts under which Constitutions have been approved.

Thus, the first question this essay wants to deal with is: Does the entrenchment of values through unamendable constitutional provisions change depending on the wave of constitutionalism being considered? Remembering that waves of constitutionalism have been defined according to a chronologic criterion,^[1567] it could be noted that belonging to a wave is less relevant than the history of a country for purposes of defining unamendable clauses. In fact, notwithstanding the waves they belong to, the will to preserve the system from the reestablishment of authoritari- anisms seems to be the major concern of the European cases considered. At the same time, the drafting of unamendable provisions is strongly linked to the way framers perceived the illegal behaviors of previous autocrats. In Germany, the introduction of unamendable clauses aims at protecting those principles that the flexibility of the Weimar Constitution allowed Nazis to nullify. In Italy, the task was to preserve the institutional choice for the republican form of the government done with the institutional referendum, which demonstrated the will of Italians to definitively foreclose the possibility of any kind of authoritarian power taking over, whether at the hand of a King or a tyrannical President.

Furthermore, the Italian Constitution, despite not explicitly declaring their unamendability, proposed a list of “inviolable” rights, reminiscent of the protection of human dignity under the German Basic Law. In Central and Eastern European transitions, unamendable clauses were introduced in the Charters in order to protect human rights from violations such as the ones that had existed under the Communist regimes, and secure the existence of the rule of law, thereby avoiding that Constitutions will be

used to arm the State against citizens.^[1568] Nevertheless, in Romania, the provisions on the control of unconstitutional constitutional amendments strongly safeguard the secondary constituent power by preventing the Constitutional Court from exercising a posteriori control. Meanwhile, in the Czech Republic, the Court self-attributed this kind of competence in the previously discussed 2009 decision regarding the amendment to the Chamber of Deputies’ term. Following a different reasoning, unamendable clauses in the current Tunisian and Moroccan Charters continue to protect stability, although sometimes this may grant more protection to the government rather than to fundamental rights, according to a characteristic of Arab Constitutions the doctrine already highlighted.^[1569] Furthermore, the unamendability of the provisions concerning Islam is controversial and the role of Judiciaries confirms to be, once again, at the center of the future developments of these legal systems.

The role of Judiciaries calls into question the second issue this essay wants to bring to light: Does the judicial interpretation modify the understanding of constitutional values? In fact, judicial interpretation represents the most useful tool to avoid the stagnation of the fountain source, given that, while it may facilitate the preservation of the core elements of Constitutions, it may also limit their adaptability to the current needs of society. As previously stated, in Italy and Germany, Constitutional Courts developed case law that considers the right to personality a fundamental element of the legal system, combining individual dignity and freedom to develop one’s own personality in social activities.

The case law states that this is a tool for strengthening the will to protect human rights through the Constitution. Thus, the interpretation does not seem to alter the intentions of the framers, but it rather broadens them, enlarging the values that are protected as unamendable. Similarly, in the Czech case, the Constitutional Court intervened in the protection of the basic structure of the Constitution. By contrast, in Romania, the different framers’ attitude toward the protection of unamendable elements—which, in a sort of “back to future” game, connects the Romanian system to the constitutionalism based on absolute centralism of the parliamentary sovereignty—weakened the Court and reduced the influence of judicial interpretation in protecting constitutional core values. Nothing can be said, finally, for the constitutional interpretations of Tunisian and Moroccan Courts, as they have yet to interpret the unamendable provisions recent constitution-making processes have yielded. Nevertheless, some auspices may be formulated. As long as these countries continue to be at the center of a dialogue with other democracies and the international support to their democratic consolidation continues despite the attacks threatening their stability, the risk that they will return to an authoritarian regime are fewer. The risks of a constitutional interpretation prone to a backlash that obliterates the achievements of separation of powers and human rights’ protections are also lower.

The last question proposed at the beginning of the essay was: Does the European Common Constitutional Heritage influence the definition of values entrenched through unamendable provisions? As Rosnai notes, “a nation’s constitutional identity is defined by the intermingling of universal values with the nation’s particularistic history, customs, values and aspiration”.^[1570] The analysis proposed here seems to confirm this premise, highlighting how unamendable constitutional provisions safeguard values that characterize the national identity of a country and the common constitutional heritage.

Furthermore, if “the purpose of unamendable clauses is mainly symbolic”^{^[1571]} (i.e., showing the will of a State to overcome the past and demonstrating the adherence to some specific values), in European countries such values are the result of a shared history and of a common legal path. Nevertheless, at the end of the analysis, it must be noted that these countries did not show clear references to the specific features of the European Heritage in the wording of their Constitution, which are more generally reminiscent of the tenets of global constitutionalism. A more evident influence may be found in the interpretation of the unamendable clauses, when Courts constantly took, and continue to take, into account the understanding of concepts such as democracy and protection of rights as developed in the European continent. As for the two remaining cases of Morocco and Tunisia, even though the implementation of the Constitutions is still ongoing and proving their value will be the real bench, the dialogue with the European Common Constitutional Heritage seems to have represented a useful parameter to affirm the fundamental tenets of the constitutional State.

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Source: Albert Richard, Oder Bertil E.. An Unamendable Constitution? Unamendability in Constitutional Democracies. Springer International Publishing,2018. — 389 p.. 2018

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