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Constitutional reforms

 

Constitutional reforms are complex and lengthy processes. In some European States, these processes have stretched over several years, and have been accomplished through subsequent sets of amendments. Sometimes they are the result of a new positioning of political forces following elections and pushed by new majorities wishing to consolidate and, where appropriate, re-establish the institutional and constitutional architecture of the country.  

 

Requests for assistance and the participation of the Venice Commission in these processes bear witness to the trust and respect enjoyed by the Commission from the States concerned as well as from institutional partners within and outside the Council of Europe.

 

Key topics

In recent years, the Venice Commission has been working on important constitutional reforms and/or constitutional issues in a significant number of European and non-European countries, representing both younger and more established democracies. 

 

In this context, the Commission tackled diverse and complex issues including:

  • the balance between flexibility and rigidity of the Constitutional provisions;

  • procedures for amending the Constitution (thresholds and required majorities for constitutional amendment, the inclusiveness of the constitutional process, the citizens’ participation in the decision-making);

  • the need for a coherent concept for the country’s political system;

  • checks and balances between powers and the principle of inter-institutional co-operation;

  • the delegation of legislative powers;

  • judicial reforms;

  • guarantees for the respect of the rule of law and fundamental rights and freedoms;

  • proposed electoral systems;

  • local self-government and decentralization issues etc.

 

In 2010, the Commission adopted a general Report on constitutional amendment.

 

Also see: Compilation of Venice Commission documents on constitutional amendment

 

 

Opinions on recent reforms

In 2016, the Commission adopted opinions on the referendum on constitutional amendments in Azerbaijan and on the state of emergency in Turkey. Furthermore, the Venice Commission adopted the final opinion on the constitutional reform regarding the judiciary in Albania.

 

  • In July 2016 the President of Azerbaijan introduced amendments to the constitution. This reform had been put to the referendum without the involvement of the Parliament and without genuine public discussion. The Commission noted that position of the President, already very strong, was strengthened even further, which disturbs a proper balance of powers.
     

  • The 2016 opinion on France (Opinion on the Draft Constitutional Law on “Protection of the Nation”) recommended that the proposed constitutional clause on emergency regime should circumscribe emergency powers of the legislature and that the prolongation of the state of emergency be decided by a qualified majority of votes.
     

  • Three major opinions on Turkey have been adopted in 2016. The first concerned the suspension of the second paragraph of article 83 of the Constitution guaranteeing parliamentary immunity. This amendment was criticised as a misuse of the constitutional amendment procedure, which, in addition, encroached on the freedom of the parliamentary debate. 
     

  • The second opinion on Turkey adopted in 2016 did not concern permanent modifications to the Constitution, but the emergency regime introduced in July 2016, whichhad important effect on the constitutional design of the country, at least temporarily. The Commission acknowledged that vesting the Government with the emergency powers might have been justified after the failed coup d’état of July 2016, but the measures taken by the Government were excessive. In particular, the Commission expressed concern that the Government was allowed to legislate for over two months without any control by Parliament or by the Constitutional Court, and that it conducted an indiscriminate purge of the State apparatus, which raises serious human rights concerns.
     

  • The third opinion on Turkey concerned the curfew measures impose din the South-Eastern part of Turkey which, in the view of the Venice Commission, did not meet the requirements of legality enshrined in the Constitution and resulting from Turkey’s international obligations in the area of fundamental rights.
     

  • The work on the Albanian constitutional reform, started in 2015, continued in 2016. The Commission adopted a final opinion in which it generally endorsed a comprehensive reform of the regulatory bodies of the Albanian judiciary, and the introduction of a special ad hoc “vetting mechanism” supposed to combat corruption amongst judges and prosecutors, under supervision of the international community. The Commission also adopted an amicus curiae brief for the Constitutional Court of Albania regarding the vetting law, which developed constitutional provisions on the vetting of judges and prosecutors.
     

  • The Venice Commission analysed the draft law of the Republic of Moldova proposing an “ethno-cultural status” for the district of Taraclia, inhabited by a majority of ethnic Bulgarians. Notwithstanding the legitimacy of its declared aim - the preservation and protection of the linguistic and cultural identity of Bulgarians in Taraclia - the draft raised issues of legal certainty, constitutionality and consistency with the relevant domestic legislation, and the proposed status appeared to bring little added value to the existing legal framework.
     

  • The Venice Commission endorsed the preliminary joint opinion by the Venice Commission and the OSCE/ODIHR on the introduction of amendments to the Constitution of the Kyrgyz Republic, where it concluded that the draft amendments would negatively impact the balance of powers by strengthening the powers of the executive, while weakening both the parliament and the judiciary.

 

See also - the Compilation of Venice Commission opinions concerning Constitutional and Legal Provisions for the Protection of Local Self-Government (CDL-PI(2016)002).

 

In 2015, the Commission adopted opinions on important constitutional processes in several countries, including: Armenia, Albania (in the field of the judiciary), Bulgaria (in the field of the judiciary), and the Kyrgyz Republic.

 

At the same time, it pursued further and intensified its co-operation with Ukraine on the constitutional processes launched after the fall of the previous regime. This co-operation has focused on the decentralisation efforts, a crucial dimension of the constitutional reform, as well as on key aspects of the judicial reforms and other key issues for the democratic transformation of the Ukrainian society. In this context, the Commission provided opinions:

  • on the draft law on introducing changes to the Constitution of Ukraine on the immunity of members of Parliament and judges;

  • on draft amendments to the Lustration law adopted in December 2014 (and previously examined by the Commission in the framework of an Interim Opinion);

  • on constitutional amendments regarding the judiciary of Ukraine;

  • on the amendments to the Constitution of Ukraine regarding the territorial structure and local administration;

  • on the temporal validity of draft transitional provision 18 of the Constitution of Ukraine on the special arrangements for certain territorial units in Ukraine.
     

In 2014 the Commission was involved in the constitutional reform processes in Armenia, Romania, Ukraine, and in “the former Yugoslav Republic of Macedonia”. Some of those reforms were very ambitious, such as in Armenia where the proposed model shifts the State towards a parliamentary Republic. The authorities of “the former Yugoslav Republic of Macedonia” introduced a package of seven Constitutional amendments touching upon various constitutional matters without, however, changing the core principles of the functioning of the State. 

  • In its opinion on the concept paper on the constitutional reform in Armenia the Commission praised the general direction taken by the reform and called for further elaboration of constitutional provisions.

  • In the opinion on the amendments to the Romanian constitution the Commission observed that certain improvements had been made to an earlier draft, but the competencies and powers of different branches of government vis-à-vis each other, as well as checks and balances, were not properly and consistently delimited.

  • The Commission pursued its co-operation with the authorities of Ukraine where, after the fall of the previous regime, there was a pressing need for a comprehensive reform of the State structures. The Commission issued an opinion criticising the “independence referendum” in Crimea as anti-constitutional and conducted in defiance of the rules of democratic procedure. In parallel, the Commission assessed the (later withdrawn) Russian draft law on admission of new subjects to the Russian Federation and concluded that this Draft law was in clear violation of international law; the draft was abandoned by the State Duma.

  • The Commission further assessed the draft amendments to the Ukrainian Constitution submitted by President of Ukraine. The Commission welcomed the move towards the decentralisation of the State but expressed concern about the growing powers of the President.

     

In 2013 the Commission was involved in an high number of constitutional reform processes relating to very different countries and situations. Some of these opinions followed an earlier involvement of the Venice Commission, others broke new ground.

  • For the first time the Commission adopted an opinion on the draft Constitution of a country of the Southern Mediterranean, Tunisia. This opinion was preceded by intense exchanges between Commission representatives and the National Constituent Assembly. The Constitution finally adopted on 26 January 2014 largely reflects the Commission’s recommendations and seems an excellent basis for the further democratic development of this country.

  • The Commission adopted an opinion on the draft new Constitution of Iceland. The subsequent decision of the Icelandic parliament not to adopt the draft but to make it easier to amend the Constitution is in line with the Commission’s opinion.

  • At the request of the Parliamentary Assembly, the Commission adopted an opinion on the balance of powers in the Constitution and legislation of Monaco.

  • The Commission adopted a critical opinion on the Fourth Amendment to the Fundamental Law of Hungary. The subsequently adopted Fifth Amendment takes into account some of this criticism in relation to the ordinary courts but fell short of the recommendations concerning the Constitutional Court.

  • The Commission was involved in discussions to amend the Constitution of Bosnia and Herzegovina in order to implement the Sejdic and Finci judgment of the European Court of Human Rights. Unfortunately these discussions brought no result.

  • In Montenegro, in co-operation with the Commission, amendments to the chapter of the Constitution on the judiciary were prepared to comply with recommendations from earlier Commission opinions. The Commission adopted a positive opinion on the draft which was then adopted by parliament.

  • The Commission adopted an opinion on draft proposals to amend the Constitution of Georgia focusing on the procedure for amending the Constitution. In line with the recommendation by the Commission, the proposal to make it easier to amend the Constitution was not implemented.

  • The Commission worked together with the Constitutional Assembly of Ukraine and adopted two opinions on proposals to reform the chapter of the Constitution on the judiciary.

     

In 2012, The Commission provided an opinion on the constitutional situation in Romania and pursued its work on constitutional developments in Hungary. The Commission also gave an opinion on the revision of the Constitution of Belgium and examined two sets of draft amendments to the constitutional provisions on the judiciary of Montenegro.

In 2011, the Venice Commission adopted an important – critical – opinion on the new Constitution of Hungary. Subsequently, it also examined legislation enacted by Hungary as part of the implementation of the new Constitution. In 2011, the Commission also adopted an Amicus Curiae Brief on three questions raised by the Constitutional Court of the Republic of Moldova related to Article 78 of the Constitution, on the procedure for the election of the President.   
 

See also: All documents on constitutional reforms

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