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Popular Participation in Constitutional Amendment: A Public Debate

On the occasion of the publication of the book X. Contiades/A. Fotiadou (Eds), Participatory Constitutional Change. The People as Amenders of the Constitution, (Routledge 2017),
The Centre for European Constitutional Law – Themistocles and Dimitris Tsatsos Foundation organizes a public debate in Athens, Greece on the issue:

Popular Participation in Constitutional Amendment

The trigger for this debate is the current participatory process in Greece, initiated by the Greek Government as a step prior to the initiation of a constitutional reform, which is not however uncontroversial.

Keynote Speakers:

Kostas Douzinas, Professor of Law, University of London (Birkbeck), SYRIZA MP

Michael Spourdalakis, Professor of Political Science, University of Athens, Head of the Committee on Constitutional Revision

Stavros Tsakyrakis, Professor of Constitutional Law, University of Athens

George Gerapetritis, Assoc. Professor of Public Law, University of Athens

Alkmene Fotiadou, Phd in Constitutional Law, Attorney-at-Law

The discussion will be moderated by Professor Xenophon Contiades, Director of the Centre for European Constitutional Law.

Friday, April 7, 2017 at 17:30, Goethe Institute of Athens (Omirou 14-16)

The Constitution of Greece did not undergo any formal change ever since the financial crisis broke out. During the first years despite strong narratives of constitutional reform a constitutional obstacle to such reforms appeared to be blocking change. The amending formula sets a mandatory time lapse between revisions, that is, revision of the Constitution is not permitted within five years of the completion of the previous one. Thus, the initiation of the revision process could not begin before May 2013. Eventually constitutional handcuffs[1] proved not to be the problem. Even when the constitutional  impediment was out of the way no formal change was initiated. The amendment formula requires a degree of consensus which is difficult to achieve in conditions of polarization. Nothing thus happened, until on July 25 2016 the Prime Minister announced his intention to initiate revision of the Constitution.

The process proposed is unprecedented, introducing popular involvement through participatory procedures. Already a Committee has started to work toward the direction of putting together a deliberative process. Enhancing popular participation in constitutional amendment could bring the electorate closer to the Constitution rendering the participation provided for by the amendment mechanisms in place more meaningful. However, serious pitfalls exist. The opposition does not back the pre-amendment process that has began. The augmented consensus required for a constitutional revision by formal amendment rules is highly unlikely to be reached. So there is a possibility of an impasse that will block formal change.

Another route would be by-passing the amendment formula. Τhe Prime Minister has stated that it is possible that a referendum shall be held on issues related to the amendment. Nonetheless, his option is not constitutionally available.  This probability would lead to an unconstitutional constitutional amendment.[2] Such a development could prove quite dangerous in a crisis-struck constitutional order, within an environment of deep political polarization, which culminated during and following the Grexit referendum. An unconstitutional amendment would be a clear indication of backslide. What will happen next?

 


[1] Richard Albert, ‘Constitutional Handcuffs’ 42(3) Arizona State L. J. (2010), 663

[2] Yaniv Roznai, Unconstitutional Constitutional Amendments: The Limits of Amendment Powers, OUP 2017.

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