نوع مقاله : مقاله پژوهشی
نویسندگان
1 دانشجوی دکتری حقوق عمومی، دانشگاه علامه طباطبائی، تهران، ایران
2 دانشیار گروه حقوق عمومی و بین الملل دانشگاه علامه طباطبائی، تهران، ایران
کلیدواژهها
عنوان مقاله English
نویسندگان English
Introduction
The concept of constitutional unamendability holds paramount significance within a constitutional framework. A constitution sets out the fundamental rules of a society, and its amendment procedures specify how those rules may be modified. In this respect, provisions on unamendability can be understood as the principles that govern how fundamental rules may be changed. As such, they constitute one of the most crucial elements of any constitution. Unamendability has drawn growing global attention and is now recognized, in both codified and uncodified forms, by numerous constitutional systems.
It operates to restrain political actors and the public from engaging in revision efforts, effectively transforming attempts to alter fundamental constitutional principles into long-term prohibitions.
Republicanism in France and Italy, human dignity in Germany and Armenia, fundamental rights in Central Africa and Brazil, secularism in Azerbaijan and Turkey, and religion in Algeria and Iran are among the many examples of unamendable constitutional principles. Constitutional unamendability, as one of the most important elements of a constitution, has increasingly captured the attention of constitutional drafters in both constitutional and even non-constitutional systems. Any theory about constitutional unamendability must address two fundamental questions.
First, what is the legal logic underlying constitutional unamendability? Second, which parts of a constitution should be considered unamendable? The concepts of unamendability as a derived constituent power and of transnational unamendability, viewed through the lens of universal constitutionalism, offer persuasive answers to these questions. Yet the precise answer to each ultimately depends on resolving a prior question: What, exactly, is constitutional unamendability? In Iran, the theoretical refinement of constitutional unamendability is particularly significant and urgent, specifically due to the emergence of a certain consensus among political actors, as well as legal and non-legal doctrines, regarding the question of constitutional revision. The present study aimed to offer a unified and consistent theory of constitutional unamendability by examining the nature of constitutional unamendability, exploring its legal logic, and presenting a normative approach regarding the unamendable content of the constitution. The analysis focused on constitutional unamendability in Iran.
Literature Review
A review of the Persian-language research reveals that scholars of constitutional law in Iran have not devoted sustained, independent attention to the theory of constitutional unamendability. Secondary sources typically offer only limited discussions of its legitimacy or illegitimacy, without undertaking a comprehensive or in-depth analysis. These works often arrive at a broad and somewhat superficial conclusion: constitutional unamendability is incompatible with democratic principles and the right to self-determination, and is therefore unacceptable. Notable examples of scholarship in this area include “The Right to Self-Determination in International Human Rights Law and Ultra-Constitutional Principles” (Mohebbi & Najafabadi, 2020) and “Theoretical Foundations of the Basic Constitutional Review” (Ghamami & Hosseini, 2019).
Materials and Methods
The present study employed a library research method for data collection and a normative method for data analysis. It was structured into three interconnected sections, each contributing to the development of a coherent theory. The first section examined the nature of constitutional unamendability. The second explored the legal logic underlying constitutional unamendability. Finally, the third section presented a normative approach regarding the unamendable content of the constitution.
Results and Discussion
The theory of constitutional unamendability seeks to legitimize the scope and limits of explicit and implicit constraints on constitutional revision by drawing a terminological distinction between revision and amendment, defining revision as an exercise of derived constituent power, and adopting a universalist understanding of constitutionalism.
This theory is expressed through three principles: a restricted obligation of unamendability for core constitutional values, the permissibility of unamendability for intermediate values, and an absolute prohibition on unamendability for anti-constitutional values. An examination of Article 177 of the Constitution of the Islamic Republic of Iran showed that the Iranian legislator has effectively adopted a logic of unamendability that differs from the transnational understanding. Although the republican values enshrined in Article 177 can be interpreted—at a textual and superficial level—in a way that aligns with universal constitutionalism, the Islamic values it protects emphasize an originalist and holographic understanding of the legal and political order of the Islamic Republic, thereby reflecting an approach to unamendability that diverges from transnational unamendability.
Conclusion
The growing significance of constitutional unamendability has made it a complex and contentious mechanism for imposing constraints on constitutional revision. The theoretical and practical challenges arising at three levels—institutional design, judicial review, and political interaction—are closely tied to fundamental concepts and the emergence of new constitutional rights. As a result, it is now imperative to conceptualize constitutional unamendability in a manner that produces a theory capable of shaping constitutional thought.
A theory of constitutional unamendability must provide convincing answers to two central questions. First, it must explain the legal logic underlying constitutional unamendability. Second, it must identify which constitutional elements should be considered unamendable. Addressing these questions depends on a clear understanding of the concept of constitutional unamendability itself.
The present inquiry sought to advance the theoretical exploration of constitutional unamendability by offering integrated and coherent responses to these questions. It is feasible to establish a distinction between revision and amendment through lexical analysis and an examination of the nature, characteristics, content, and guarantees of constitutional unamendability. This can provide the conceptual foundation necessary for understanding and theorizing constitutional unamendability.
Understanding the legal logic underlying constitutional unamendability rests on recognizing constitutional amendment as a derived constituent power within the conventional theory of constitutional amendment. It further requires differentiating constituent power from constituted power and substantiating this distinction through an analysis of three major approaches: substantive, procedural, and delegated. The theory also engages with the notion of transnational unamendability, grounded in a universalist interpretation of constitutionalism, and provides justification for both explicit and implicit limits on amendment. The implications of transnational unamendability are reflected in a restricted obligation of unamendability for core constitutional values, the permissibility of unamendability for intermediate values, and an absolute prohibition on unamendability for anti-constitutional values.
کلیدواژهها English
کتابها
- احمد کسوله، عمر، «جهانشمولی حقوق بشر در مقابل تنوع فرهنگی، پاسخی از دیدگاه اسلام»، در مجموعه مقالات همایش بینالمللی مبانی نظری حقوق بشر، دانشگاه مفید قم (قم: مرکز مطالعات حقوق بشر دانشگاه مفید، 1384).
- آلبرت، ریچارد، اصلاحناپذیری قانون اساسی در نظریه و عمل، ترجمه جواد یحییزاده (تهران: مجد، 1402).
مقالهها
http://otaghiranonline.ir/news/28980
https://www.shora-gc.ir/fa/news/3615/
https://www.etemadonline.com/tiny/news-413680
Doi: 10.22059/jplsq.2018.242729.1590.
Doi: 10.22091/csiw.2020.4867.1670.
https://www.jamaran.news/fa/tiny/news-1585334
Doi: 10.22059/jcl.2020.312290.634096
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