CEU Electronic Theses and Dissertations, 2023
| Author | Mahtab, Ragib |
|---|---|
| Title | The Possibility of Unconstitutional Constitution: Bangladesh, Bolivia, and Honduras Cases in Context |
| Summary | Based on three cases of Bangladesh, Bolivia, and Honduras, this thesis primarily aims to answer whether courts can review and invalidate constitutional provisions. The respective courts have, disregarding the subordination of the constituted power to the constituent power, reviewed and invalidated the work of the constituent power (i.e., provisions of the Constitution). In answering the question, the thesis at first determines whether, as opposed to conventional understanding, there are limits to constituent power. Maintaining that there are context-specific limits to constituent power, the thesis addresses an anticipated query regarding the possibility of surpassing such limits: by proposing two models on the exercise of constituent power: Revolutionary Model and Conformist Model. It argues that while constituent power within the Revolutionary Model, is unbounded, within the Conformist Model, is limited. Thereafter, it places the existing Constitutions of the three countries within the two models and finds that in case of 1972 Bangladesh Constitution, that emerged from within Revolutionary Model and as such was not subject to any limits, the question of review by court does not even arise. However, the 1982 and 2009 Constitutions of Honduras and Bolivia respectively, emerged from within Conformist Models and could be subject to limits. Thereafter, the thesis, using the Bolivian and Honduras cases, determines whether the court, in Conformist cases, can review and invalidate the works of the constituent power based on the said limits? The thesis answers the question in the negative providing threefold reasoning: the subordination dilemma that exists even within the Conformist Model, contested conception of principles that are considered to bind the constituent power, and pragmatism |
| Supervisor | Böckenförde Markus |
| Department | Legal Studies LLM |
| Full text | https://www.etd.ceu.edu/2023/mahtab_ragib.pdf |
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