Article 28 of the Universal Declaration of the Human Rights (1793) states that- "a group of people always have the right to revise, reform and change the constitution; a generation cannot subject future generations to its laws."
This provision implies that the constituent power is always free. In reality however, the Constitution, is conceived as the supreme law. This supremacy is guaranteed by the fact that it can be developed and modified only by a special procedure called solemnization. Also, the rules inconsistent with the constitution are censored. The laws passed by the Parliament are subject to constitutional review. Thus, the rule of law becomes a formal rule of substantive law when the Constitution contains within it the rules relating to fundamental freedom.
[...] This leads to two consequences: firstly the constituent power may not repeal or modify a standard as super constitutional, and secondly in case of conflict between a standard above Constitution and a constitutional standard, the court must invalidate the second. These rules are justified by historical considerations. The prohibition on changing the republican French government is due to a drift observed during the monarchical regimes. The constitutionality above is important because it is supposed to protect the constituent power of the people against the constituent power derivative, and this especially when the referendum is irrelevant. [...]
[...] They are sworn to perform their duties impartially and in accordance with the Constitution Operation There are basically three stages in the operation of the constitutional council: referral, review and decision. It is noteworthy that the procedures for referral vary according to areas of competence. The Council may be called upon by the presidents of the assemblies to give an opinion, and it may be called upon by the voters and candidates in parliamentary elections for electoral purposes. In case of presidential elections, the prefects as well as the voters and candidates may refer to the Council. [...]
[...] The most interesting aspect of this subject is the derived constituent power which intervenes to modify or revise the Constitution in the context of continuity of the legal system. An example of this occurred recently in France with the passing of the law of July 23rd which modernized the institutions of the Fifth Republic. This power is, by definition, subject to the existing Constitution and has clear-cut limits. Moreover, the framework of the constituent power is derived and based on the degree of rigidity or flexibility of the Constitution. [...]
[...] If they contain provisions that are not compliant with the Constitution, the Council acknowledges the power of the legislature to amend these provisions. The most important function of the Council is the control over ordinary laws. The decision of 1971 did not only increase the control of the Council over the conformity of laws within the Constitution and the organic laws, but also over the Declaration of Human Rights and Citizens of 1789 and the Preamble of the constitution of 1946 which is alluded to in the Preamble to the Constitution of 1958. [...]
[...] It establishes the unconstitutionality of a law following the request of a party during a trial, and Article 61-2 states that the Act is repealed and the decision does not affect pats judgments, in order to avoid security risks. B / Competence of the Constitutional Council 1. The enforcement of the division of powers between the Parliament and the Government The Constitutional Council has various powers. Indeed, the principle of separation of power constituents prepared by Sieyes may not to be assigned by authorities to review a single power up. [...]
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