The Source of the Separation of the Original and Derived Pouvoir Constituant

Taking into consideration that the difference between the original and derived pouvoir constituant remains at the center of the dispute, therefore, these concepts deserve some preliminary consideration.

2.1 The Relation Between the Pouvoir Constituant

and Unamendable Provisions

The most important effect of the prohibition to amend some of the articles of the constitution is the determination of the limits of the derived pouvoir constituant, because the unamendable articles define the area which remains out of reach from this type of power. Some authors defend that, due to the limitless aspect of the pouvoir constituant, the power to amend the constitution should not be called “constituent”, but should be considered as only an amending power.^[1033]

The concept of pouvoir constituant has several effects on the legal value of the unamendable provisions of a constitution. It can be said that the legal value of unamendable provisions depends on the context in which the act to constitute is accepted and on the specific limits of the parliament.

2.1.1 What Is the Pouvoir Constituant?

The special quality of constitutions obliges such texts to be drafted by organs which have some form of special political power. These organs which correspond to one of the components of sovereignty are called “pouvoir constituant”.^[1034] In other words, the pouvoir constituant, in general, is the power which is equipped with the right to draft a new constitution or to amend the existing constitution. In a nutshell, the power which approves a constitutional norm is called a pouvoir constituant.

Very few concepts in the field of philosophy of law has been treated as much as the concept of pouvoir constituant. The theory of the pouvoir constituant was formulized with the emergence of written constitutions and especially during the American and French Revolutions.

The national representation, one of the indispensable principles for the nation-state, was announced by Sieyes in his booklet published in 1789. Goztepe defends that by describing the bourgeoisie as the pillar of the state and the nation itself, the author generated the final transition from popular sovereignty to national sovereignty.^[1036]

However, soon after this transition, in this newly established order, a new problem emerged: How to make the derived pouvoir constituant respect the con­stitution written by the original pouvoir constituant. With the aim of solving this question, in his speech during the debate of the 3rd Year Constitution in 1795, Sieyes suggested to establish a Jurie Constitutionnaire which would guarantee the protection of the constitution. He argued that the constitution as the projection of the will of the sovereign nation draws the limits and authority of the powers which come into existence through it and, therefore, the representatives of the people should act in conformity with this basic will of the nation who remains the real holder of sovereignty. This suggestion was however not adopted due to the strong wind supporting the idea of the supremacy of the parliament after the Revolution.

In France, the parliament-oriented view is still reflected within the jurisprudence of the Constitutional Council. In one case the Council said that it is not its duty to check the constitutionality of constitutional amendments.^[1037] In this decision the Council claimed that it had no authority provided by the constitution.

On the other hand, the possibility to determine some legal limits to constitutional amendments requires a separation between the power to draft the constitution and the power to amend it. Schmitt alleges that, even when there is no unamendable provision in a constitution, the derived pouvoir constituant cannot change its essence and therefore, if there is an article in the constitution which prohibits the amendment of some of the provisions, it means nothing else than the approval of the difference between the constitutional amendment and the total abrogation of the constitution.^[1039] In other words, there is an important difference between the power equipped with the right to amend the constitution and the power which has the right to abolish it. Thus, the former cannot have, at the same time, the right to abolish it which essentially belongs only to the latter.

In fact, the theory of the principle on the separation of these two powers which emerged during the French Revolution is based on the organic separation and the logical difference between the power which drafts the constitution and the organs created by it. Thus, a higher and extraordinary power is established on the top of the ordinary legislative, executive and judiciary powers. The main aims of the former are to create, to manage and to stay out of them. This is the principle which should be called the principle of the separation of the constituting power from the constituted powers.^[1040]

2.1.2 Who Is the Sovereign?

The question that we face at this point concerns the identity of the sovereign.

For Lavroff, this separation between the original pouvoir constituent which is used directly by the sovereign and the derived pouvoir constituent which is formed by the constitution and bound by the powers and procedural limitations determined under it, is justified due to the duty of the organs created by the sovereign to show respect to its will. If this separation is not accepted, it would correspond to ignoring the powers of the sovereign and indeed, to cutting off the relevant powers from its body in favor of representatives.^[1041] Consequently, suggesting that the derived pouvoir constituent is not bound by unamendable provisions would mean to ignore the existence of an original pouvoir constituent.

On the contrary, the dominantly accepted theory on this issue in the United States is that the original and derived pouvoir constituents are completely different concepts. Americans, from the foundation of their country onwards, think that it is only the constitution of the United States which is a product of the general will and they see the Congress as a secondary organ founded by the constitution, and not like a parliament which represents the national will. This perception is at such a point that ordinary laws are considered as not the result of the will of the people (nor the nation) but only of the will of the members of the legislative organ. Thereby, Americans have separated strictly the founding power from the power to legislate and put the latter under the sovereignty of the constitution. As a conse­quence, in the United States, the legislative organ has no authority to solely amend the constitution.^[1042]

Klein cites Carre de Malberg who calls this situation as the “American differ­ence” and sees it as a result of the double separation of the constituent power from the legislative organ: Legislative organ cannot have the power to constitute and the convention (constituent power) cannot have the right to legislate.

2.2 Challenging the Quality of Being “Constituent”

of the Derived Pouvoir Constituant

We have elaborated on the source of the difference between the original and derived pouvoir constituants above. However, some authors claim that there is a bigger separation between these powers than a simple “difference”.

2.2.1 “Constituent” versus “Constituted”

Schmitt thinks that it is not right to qualify the power limited and constituted by constitutional articles which has only the power to amend the unessential provisions of a constitution as a “pouvoir constituant”. In his influential work, Theory of the Constitution, he writes that

the authority to amend the constitutional laws,^[1045] like the other powers which stem from the constitutional laws, is an authority determined by law and thus, principally limited. It cannot go beyond the framework drawn by the constitutional order which is also the reason for its existence.^[1046]

Therefore he suggests that the power to amend the constitution is not a con­stituent, but only a constituted power.

In the same direction, Beaud underlines that qualification of both an unlimited power and a power limited by the absolute power as constituent is contradictory. They do not have the same nature. Therefore, to classify them within the same category and to accept a relative separation instead of an absolute one are results of a logical mistake.^[1047] Beaud suggests that authors who accept that these two powers have different natures but who also use the adjective “constituent” for both of them are not loyal to their own separation.^[1048]

From the point of view of Derosier, the pouvoir constituant can only be original.

Murswiek also claims that the constitution is established by the pouvoir con- stituant and that the legislative organ which amends the constitution is just one of the constituted state organs. For the author

the drafter of the constitution and the legislator which amends the constitution are, not only organically different, but also functionally different subjects. There is a hierarchical rela­tionship between these two subjects: The legislator which amends the constitution, as a constituted state organ depends on the constitution and obtains its authority from it within a determined framework.^[1050]

As a result of this hierarchical positioning, unamendable provisions are the limits to the power to amend the constitution designated by the original pouvoir consti­tuant and therefore they can be amended or repealed only by another original pouvoir constituant. If the power to amend the constitution tries to amend or repeal the unamendable provisions, it would trespass the limits of its authority.

Burdeau claims that, by its nature the power to amend the constitution cannot seize what belongs to the original pouvoir constituant:

The pouvoir constituant still exists with all of its essential authorities and in the normative hierarchy stays above the constituted power to amend the constitution. The substitution of the original pouvoir constituant by the amending power is unthinkable because it would mean a contradiction in adjecto.^[1051]

In other words, in this case, a type of power in a lower level would suggest becoming another power in a higher level, yet this cannot be possible because the higher power still exists.

In summary, the quality of being “constituent” for the power to amend the constitution which is usually called derived pouvoir constituant is controversial. Ironically, in the light of this ambiguity, the separation between the provisions which provide the essence of the constitution and the rest of them becomes clearer. In contradiction with the positivist approach, there is a qualitative difference between unamendable articles and other articles of constitutions. As a consequence of this difference, while the original pouvoir constituant is an unlimited power which drafts the constitution and which has the right to establish unamendable provisions within it, the derived pouvoir constituant is a limited power equipped by the right to amend only the amendable articles in conformity with the procedural rules foreseen within the constitution.

To elaborate on this thesis and to understand why the last sentence of the Article 20 of the German Basic Law is amendable, the descriptions and limits of the original and the derived pouvoir constituants should be analyzed in further detail, especially in light of the unamendable provisions.

2.2.2 The Original Pouvoir Constituant in Terms of the Unamendable Provisions

As mentioned previously, the term “original pouvoir constituant” is one of the most controversial and dealt subjects of the constitutional law theory. Beside its importance, this is a natural result from the never-ending debate on whether the term is discrete and non-legal. The limits of the original pouvoir constituant can vary from one definition to another. In light of this, and subsequent to summarizing the various existing views on the definition and the limits of the term, I will elaborate on my own view and put forward the justification on why the “original pouvoir constituant” should be considered the one and the only power which has an authority to create unamendable constitutional provisions.

The Definition of the Original Pouvoir Constituant

There are various definitions of the term original pouvoir constituant. There are as many common points between these definitions as differences. Consequently, we will limit ourselves to the relatively important ones that we come across within the constitutional law doctrine.

The constituent power gains the adjective “original” only in very few circum­stances. The most common of these circumstances, as accepted in doctrine, is during the emergence of a new state. In this case, it’s accepted that there exists an ex nihilo situation. As an example for this situation, one may mention the institu­tionalization of a personal government, gaining of independence or the annulation of the former legal order after a revolution or a coup d’etat?'² In other words, the original pouvoir constituant is the power which cannot be bound by any pre-existing rules or limits, which has established a state and which grants it legal and political statutes and which drafts a brand new constitution or rewrites the existing one. This type of power is autonomous and independent.^{[1052] [1053] It does not have to show respect to any of the pre-existing method or limitation to write a consti­tutional norm because a tabula rasa situation exists.[1054]}

In democratic countries, the power of the original pouvoir constituant is used by the people or an assembly selected by the people. According to this, people have the power to build their own legal and political order without being bound by any constitutional norm.

Of course history contains many examples of non-democratic forms of original pouvoir constituant. In such cases, allegations by the power that it has acted “on behalf of the people” or because of “the call of the people” are methods of legit­imization. However, only the acts of an original pouvoir constituant and not the political discourse adopted by it can determine whether it is legitimate or not. Moreover, it is arguable that there is a close link between the binding nature of unamendable provisions and the democratic quality of the original pouvoir con- stituant. But this subject is outside the scope of this limited paper.

The Quality of Being Pre-law Order of the Original Pouvoir Constituant

Democratic or not, the original pouvoir constituant is a de facto, first hand and autonomous power. It takes its authority not from some other power, but relies only on itself.^[1055] Therefore, the state of being ideo-motris which qualifies sovereignty in Duguit's theory may also describe the original pouvoir constituant. In Duguit's mind, sovereignty is a will which can be defined only by itself and which has a quality peculiar to and only to itself. The only reason which can make it move is a reason that it finds in itself.^[1056] It can easily be seen that this judgement is in harmony with the idea that in constitutional law the unique and real sovereign is the original pouvoir constituant.

In other words, the constituent power which writes a new constitution after an interruption in the old legal order because of the emergence of a new state or because of a revolution or a coup d’etat is called “original pouvoir constituant”. And thus, this power takes root not from the legal order, but from politics.^[1057]

Schmitt describes the pouvoir constituant as

the political will of the power or the authority which has the right to decide concretely and comprehensively on the type and form of the political entity, in other words, to identify entirely the existence of the political unity.^[1058]

Consequently, the original pouvoir constituant^[1059] not only drafts the new con­stitution but also “identifies” it as the instrument through which political unity can exist.

From a positivist point of view, the original pouvoir constituant depends on the hypothesis that while the new legal order is being created, the older one has disappeared or that there is a legal vacuum.^[1060] This time period can also be called an interregnum during which there is no definitive legal order. Therefore, the original pouvoir constituant is a “pre-law order”. In other words, the original pouvoir constituant which has a de facto quality^[1061] due to not depending on any pre-existing law or constitution, has no legal quality; it is outside of law.^[1062]

Moreover, for some positivist writers, the constitutions drafted and approved by an original pouvoir constituant which emerges right after revolutions or coup d’etat's have no legal value because revolutions and coup d’etat's are forced acts lacking legal basis.^[1063] In other words, such writers think that the non-legal quality of the original pouvoirs constituants causes the loss of the legal value of the consti­tution in force. But in this case, we face an important paradox: If it is only the original pouvoir constituant which has the right to draft a new constitution as we claim, and if it is accepted that due to the pre-law quality of the original pouvoir constituants, the constitutions which are drafted by them don’t have any legal value, and consequently almost all of the constitutions on earth could be considered as invalid.

There can be only one explanation to this paradox: Drafting and approving a brand new constitution without an interruption in the judicial system, like we have seen in the examples of Switzerland in 1999 and Hungary in 2010. Some can also argue the drafting process of the Spanish Constitution of 1978 and the South African Constitution of 1996 as examples to the drafting processes without an interregnum. Correspondingly, some suggest that these last two examples corre­spond to an essential change in the political and legal system to the level of “emergence of a new country”. Finally, with regards to the first two examples, it is still disputable whether an original pouvoir constituant can exist as a part of the legal order in the light of the theory discussed above.

The idea in which the original pouvoir constituant is situated in the legal order suggests that during the original constituent act the dominant conception of law among the citizens transforms and consequently, the legal content of the actual system becomes vacant and all of the mechanisms of the new order depend on the newly established order brought by the revolution.^[1064] In other words, the old order has been terminated but without leaving a vacuum, the new order has been auto­matically established. Some authors include in this argument the transitions from one constitutional order to another one,^[1065] as was seen in South Africa during the transition from apartheid to a democratic regime through a process of drafting a new constitution in the first part of the 1990-s.

From a different point of view, some argue that even with the continuity of the actual constitution it is possible that an original pouvoir constituant emerges. But for this to take place, we must face a real constitutional break and the democrati­cally established unamendable provisions must be amended with the aim of establishing a new legal order which, at the same time, would require a democratic referandum on this issue. To this respect, Beaud calls the constitutional amendment to the 1958 Constitution of France in 1962 which transformed the political regime from a parliamentarian one to a semi-presidential regime as an act of the original pouvoir constituant^[1066] because a regime change can only be established by a founding act. This would also mean that Beaud supports the possibility of the emergence of an original pouvoir constituant within law.

When we look at the jurisprudence concerning this last issue, we see that the Constitutional Council of France rejected to annul the constitutional amendment of 1962 which was full of procedural problems. The Council based its decision on the existence of a referendum. Besides lacking any positive provision in the constitu­tion which gave the Council the authority to check the constitutionality of consti­tutional amendments, the Council confirmed that any norm approved by a referendum cannot be annulled because in referendums the sovereign emerges and of course, there cannot be an organ higher than the sovereign which could annul its acts.^[1067] In France, this stand of the Constitutional Council has been supported by most of the authors, including even those who support a control of constitutionality of constitutional amendments.^[1068]

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