Constitution-making, constituent power, and amendability

The paper comes to analyze the Chilean constitutional tradition and its model of citizen participation, which has been built on the basis of liberal constitutional models, elaborated by the national oligarchy. Thus, the Chilean State has historically been centralized, to the detriment of the regions, localities, and civil society organizations, alienating the citizenry from State affairs and its administration. This model has made Chile, since the Social Outbreak of October 2019, enter into a profound process of constitutional changes, which seek to update to the 21st century the way in which the State relates with citizenship. This reengineering of citizen participation has its first examples through the internal organization that the Constitutional Convention gave itself, and that would seek to materialize in the New Constitution in different areas of the public space: environment, public services, decentralization, semi-direct democracy, indigenous consultation, among others.

This paper examines the foundations, reasons and procedures of the multiple reforms made to the Peruvian Constitution of 1993. Its intention is to organize and better understand the dynamics, as well as the entire landscape, under which the set of constitutional reforms carried out so far has operated, reaching a total of 27 (from 1993 to 2022). In this understanding, the fundamentals that emerge from the various reforms are: (i) fundamentals related to strengthening the separation of powers and democracy, (ii) fundamentals to affirm the normative value of the Constitution, and (iii) fundamentals that channel social and cultural demands - with respect to the functions are: (i) democratic function, (ii) content actualizing and amplifying function, and (iii) symbolic function. And the procedures used are: (i) representative mechanism and (ii) democratic mechanism.

The aim of this paper is to scrutinize the connection between the theory of democratic constituent power and the doctrine of implicit substantive unamendability. I shall do so by criticizing the judgment of the Supreme Court of Cyprus “Michailides“ (October 2020), which inaugurated the said doctrine in Cyprus without considering the fact that the constitution of Cyprus has not been, and may never become, the product of a democratic constitution-making process. Does the absence of democratic constituent power disallow the doctrine of implicit substantive unamendability? Are alternative justifications of that doctrine sufficient or do they always need to be supplemented by the notion of a sovereign, constituent people? What kind of judicial review of constitutional amendments (if any) is compatible with the democratic principle when courts and political actors are not able to take recourse to the theory of the constituent power of the people?

The Democratic People‘s Republic of Korea (DPRK) or North Korea is not particularly well known for having a constitution, let alone several since the foundation of the state in 1948. This paper offers to investigate how North Korea has framed itself as a polity through two key constitutional categories encapsulating not only aspirations but also anxieties: peoplehood and enmity. The analysis will show that outlining whom the DPRK embraces as “the people“ and combats as “the enemies“ has been part of its constitutional identity from the start while having significantly evolved over time. The changing content and underlying logic of both categories will be traced through successive North Korean constitutional texts as well as compared with what can be found in other national contexts. By reading North Korea in historical and comparative perspective, the paper will ultimately contribute to shedding light on constitutional varieties of peoplehood and enmity within and beyond this country.

While a constitution is not present wherever polity is constituted, the semantics of the term offers both empirical and normative concepts. In a descriptive (empirical) concept, the constitution may refer to a state, while in the normative and prescriptive aspect it can refer to the laws. A constitution often reflects on the historical aspirations of the constituted state in that it reflects the deeply entrenched aspirations of its polity. Constitutionalism may be compared with conferring legitimacy of public power, with a deviation from the erstwhile concept of a compact to that of a set of institutionalized legal normative principles. Constitutions are part of moralist philosophy and therefore it would be doctrinal to state that the Basic Legitimation Demand is deeply entrenched in them. It is the primary objective of all liberal constitutions. This narrative serves to examine when a state meets this Demand.