SSRN-id2814118

Sofia Ranchordás
Constitutional Sunrise
CONSTITUTIONAL SUNRISE
SOFIA RANCHORDÁS1
(preliminary version)
forthcoming in
Richard Albert, Xenophon Contiades, Alkmini Fontiadou (eds), The Foundations and
Traditions of Constitutional Amendment (Hart Publishing 2017)
Abstract:
This chapter explores the use of sunrise clauses as instruments of constitutional change.
These dispositions allow the constituent power to defer the coming into effect of
constitutional provisions. Contrary to by-law clauses, which delegate constitutional decisions
to the legislator, sunrise clauses do not always require legislative or executive interference.
The delayed commencement of sunrise provisions can be either automatic (e.g., ratification
by all provinces) or contingent upon the verification of legal or factual conditions imposed
by the constituent power (e.g., a referendum).
While these provisions are relatively unknown in the literature on comparative
constitutional law, this chapter suggests that multiple constitutions contain automatic or
contingent sunrise clauses. This is the case of the Belgian, Georgian, Indian, Irish, and the U.
S. constitutions. While the constitutionality of sunrise clauses has been challenged in Ireland
and South Africa, I argue that the inclusion of sunrise clauses is a legitimate form of the
exercise of the constituent power.
1
Assistant Professor of Constitutional and Administrative Law, Leiden Law School, The Netherlands. I would
like to thank Richard Albert, Jack Balkin, David Grewal, Oran Doyle, Eric Fish, Jürgen Goossens, Nicholas
Robinson, Yaniv Roznai, Mark Tushnet, and Ozan Varol, and the participants of the Boston College Law
School Workshop on Constitutional Amendments for insightful comments on earlier versions of this chapter. I
would also like to extend my gratitude to the Information Society Project and the Niels Stensen Fellowship.
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Table of Contents
1. Introduction ....................................................................................................................................... 3 2. Sunrise Clauses ................................................................................................................................. 7 2.1. Automatic and Contingent Sunrise Clauses ............................................................................. 10 2.2.1. Automatic Sunrise Clauses ................................................................................................ 10 2.2.2. Contingent Sunrise Clauses ............................................................................................... 11 2.3. Sunrise Clauses and the Use of Conditions .............................................................................. 13 2.4. Sunrise Clauses and By-Laws .................................................................................................. 17 3. Contingent Constitutional Change between Retrospective and Foresight ....................................... 18 3.1. Sunset Clauses .......................................................................................................................... 21 3.2. Sunrise Clauses and Aspirational Constitutionalism ................................................................ 23 4. The Constitutionality of Sunrise Clauses ........................................................................................ 25 4.1. Riordan v An Taoiseach ........................................................................................................... 26 4.2. Sunrise Clauses and the Constituent Power.............................................................................. 29 5. Conclusion ...................................................................................................................................... 33 2 Electronic copy
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Constitutional Sunrise
1. Introduction
Constitutions are intergenerational contracts between “we, the people” and our
future-selves. However, some constitutions also aspire to be primarily monologues rather
than dialogues between the constituent power and the future generations. They burden future
generations by entrenching constitutional values against future decline,
2
and limit
constitutional change by institutionalizing complex constitutional amendment procedures
and including eternity clauses.3 The legitimacy of this inter-temporal binding as well as the
attempt to shape and protect future generations from themselves has been thoroughly
discussed in the literature. 4 Contingent constitutional change, that is, the idea that the
constituent power could defer the coming into effect of certain constitutional provisions and
make them contingent upon the verification of factual or legal conditions (e.g., a referendum,
the enactment of a law as determined by the constitution) has nonetheless remained
undertheorized in the literature on comparative constitutional law.5
2
Michael Dorf, ‘The Aspirational Constitution’ (2008) 77 George Washington Law Review 1631; Nicholas
Barber, ‘Why Entrench’ (2016) International Journal of Constitutional Law (forthcoming).
3
Yaniv Roznai, ‘Towards a Theory of Unamendability’ (2015) Working Paper, available at
http://www.academia.edu/11053169/TOWARDS_A_THEORY_OF_UNAMENDABILITY; See also Yaniv
Roznai, ‘Unamendability and the Genetic Code of the Constitution’ (2015). New York University Public Law
and Legal Theory Working Papers. Paper 514, available at http://lsr.nellco.org/nyu_plltwp/514; Ulrich K.
Preuss, ‘The Implications of “Eternity Clauses”: The German Experience’ (2011) 44 Israel Law Review 429;
Andrew Friedman, ‘Dead Hand Constitutionalism: The Danger of Eternity Clauses in New Democracies’ (2011)
4 Mexican Law Review 77, 80.
4
Anuj C. Desai, ‘What a History of Tax Withholdings Tells US About the Relationship Between Statutes and
Constitutional Law’ (2014) 108 Northwestern. Law Review 859. Michael J. Klarman, ‘Majoritarian Judicial
Review: The Entrenchment Problem’ (1997) 85 Georgetown Law Journal 492, 496; Rosalind Dixon & Tom
Ginsburg, ‘Deciding Not to Decide: Deferral in Constitutional Design”, (2011) 9 International Journal of
Constitutional Law 636, 637; see also Jack Balkin & Reva Siegel (Eds.), The Constitution in 2020 (Oxford,
Oxford University Press, 2009); Jack Balkin, Constitutional Redemption: Political Faith in an Unjust World
(Cambridge, Harvard University Press, 2011).
5
In the U.S. constitutional law, sunrise clauses have been discussed primarily by Akhil Amar, see Akhil Reed
Amar, America’s Unwritten Constitution: The Precedents and Principles We Live By (New York: Basic Books
2012) 474-476; Akhil Reed Amar, America’s Constitution: A Biography (New York: Random House 2010).
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In the past decade, a growing number of scholars has analyzed the relationship
between time and law, in particular in the context of constitutional law.6 The legal literature
has focused on the complexities of temporary legislation, timing laws and their effects,7
sunsetting judicial opinions, 8 comparing temporary and permanent legislation and the
incentives behind its adoption,9 lasting legislation,10 and, in the field of constitutional law,
constitutional change and amendments by desuetude,11 and temporary constitutions.12 This
strand of literature has focused on why, when, and how constitutional and legal dispositions
should terminate. However, little has been said about the opposite phenomenon: the
commencement of constitutional dispositions and whether sunrise clauses should be allowed
make it contingent upon a future event.13
Sunrise clauses have remained a highly overlooked topic in the literature.14 In this
chapter I argue that for example in post-conflict and highly-divided societies and in
transitional contexts,15 sunrise clauses can be important tools to guarantee that the “future
does not arrive too early” and that important, transitional, and aspirational matters that
See also Edward B. Foley, ‘The Posterity Project: Developing a Method for Long-Term Political Reform’
(2013) 66 Oklahoma Law Review 1 (2013); Daniel E. Herz-Roiphe & David Singh Grewal, ‘Make Me
Democratic, But Not Yet: Sunrise Lawmaking and Democratic Constitutionalism’ (2016) 90 New York Law
Review 1975.
6
Specifically, on time and law, and the effects of ‘temporary de-juridification’, see Antonios Kouroutakis &
Sofia Ranchordás, ‘Snoozing Democracy: Sunset Clauses, De-juridification, and Emergencies’ (2016) 25
Minnesota Journal of International Law 29.
7
Jacob E. Gersen & Eric A. Posner, ‘Timing Rules and Legal Institutions’ (2007) 121 Harvard Law Review
543.
8
Neal Katyal, ‘Sunsetting Judicial Opinions’ (2004) 79 Notre Dame Law Review 1237.
9
See Frank Fagan, Law and The Limits of Government: Temporary Versus Permanent Legislation (Cheltenham:
Edward Elgar 2013).
10
For a critical approach to temporary legislation see Rebecca M. Kysar, ‘Lasting Legislation’ (2011) 159
University of Pennsylvania Law Review 1007; Rebecca M. Kysar, ‘The Sun also Rises: The Political Economy
of Sunset Provisions in the Tax Code’ (2006) 40 (2) Georgia Law Review 335.
11
See Richard Albert, ‘Constitutional Amendment by Constitutional Desuetude’ (2014) 62 American Journal
of Comparative Law 641.
12
Ozan O. Varol, ‘Temporary Constitutions’ (2014) 102 California Law Review 409.
13
On commencement clauses, see Mark Gobbi, ‘When to Begin: A Study of New Zealand Commencement
Clauses with Regard to those Used in the United Kingdom, Australia, and the United States’ (2010), 31 (3)
Statute Law Review 153.
14
In the context of Constitutional Law, see Akhil Reed Amar, FN5 at 474-476.
15
Sujit Choudhry (Ed.), Constitutional Design for Divided Societies: Integration or Accommodation? (Oxford,
Oxford University Press, 2008). See also the special 2013 issue of the International Journal of Constitutional
Law on constitutional transition (vol. 11 (3)), see Sujit Choudhry, ‘Constitutional Transitions in the Middle
East: Introduction’, 11 (3) I CON 611.
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cannot be realistically promised to the people at that time are nevertheless included in the
constitutional agenda. As this chapter explains, this was the case of the former Directive 45
of the Indian Constitution that deferred the commencement of the right to education to a later
date in the hope that the country would have the financial means to grant Indian citizens free
access to education.
Sunrise clauses have been employed in the past century in different constitutions
throughout the world so as to delay the commencement of some of their provisions to a
certain date (automatic sunrise clauses) or make it contingent upon a certain event
(contingent sunrise clauses). To illustrate, the constitution of Georgia of 1995 delayed the
coming into effect of some constitutional provisions to a later date. While the constitution
was due to enter into force “upon the date of recognizing the powers of the newly elected
President and the Parliament of Georgia” (Article 104(1), the commencement of Articles
49(1) [composition of Parliament] and 58(1) [formation of Parliamentary factions] was made
dependent upon the enactment of “appropriate amendments and additions made to the
organic law Election Code of Georgia” (Article 104-1(1)).16 As this chapter explains, this
type of provisions may not abound but it is far from uncommon.17
Although sunrise clauses are relatively unknown in the literature on comparative
constitutional law, the idea of delaying the coming into effect of legal provisions or making
it contingent upon a determined event is present in different fields of law and it can even be
considered to be intrinsic to a legal system. When explicating the use of conditions in
contracts, Arthur Corbin reminded us that “legal relations are merely mental concepts which
16
According to Article 107 (2) of the Constitution of Georgia, Article 18(2) and (3) of the Constitution would
also only enter into force after the respective criminal procedural legislative acts are adopted.
17
Another example is Article 148 of the Constitution of Tunisia (2014) that also delays the commencement of
multiple dispositions, making them for example contingent upon “the definitive results of the first general
elections,” the direct election of the President, the election of the Assembly of Representatives, and the
enactment of a number of operationalizing statutes.
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are useful in enabling us to foresee the physical facts of the future.” 18 Along with
interpretation, the inclusion of conditions in contractual relations also promote the
foreseeability of future facts since they allow a legal relation to start before all the
contractual conditions (e.g., payment) are fulfilled. As this chapter explains, sunrise clauses
can play a similar role. The explicitly forward-looking nature of sunrise clauses in addition
to the imposition of vague conditions for the coming into force of a constitutional provision
might nonetheless raise important questions as to their constitutionality and the limits of the
constituent power.
This chapter makes two contributions to the literature. First, it explores the meaning
and functions of sunrise clauses as instruments of constitutional change. Second, it discusses
their constitutionality in light of two judicial cases from South Africa and Ireland where this
question was raised. This chapter relies on the literature on comparative constitutional law
and offers a number of examples of different types of sunrise clauses included in different
constitutions. While the constitutions selected for this chapter are not always immediately
comparable, these examples help operationalize the concept of ‘sunrise clause’ and show the
instrumental diversity of contingent constitutional change.19
This chapter proceeds in three parts. In Section 2 I define and analyze the concept of
‘sunrise clause’ and provide an overview of different types of constitutional sunrise clauses.
I refer not only to the use of sunrise clauses in the constitutional context but also in
legislation and long-term contracts, where these provisions appear to be more common. This
section offers a broad definition of sunrise clauses in order to encompass a number of sunrise
variations, including automatic and contingent sunrise clauses. I also categorize sunrise
clauses according to the type of contingency employed to determine their commencement. In
18
Arthur Corbin, ‘Conditions in the Law of Contract’ (1919) 28 Yale Law Journal 731.
For a reflection on the methodology of comparative constitutional law, see Ran Hirschl, ‘The Question of
Case Selection in Comparative Constitutional Law’ (2005) 53 American Journal of Comparative Law 125.
19
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this section, I also distinguish between sunrise clauses and by-law clauses. In Section 3, I
explore the analogy of the constitution to an intergenerational contract, which is required to
achieve a compromise between short-term and long-term commitments by adopting either a
backward- or forward-looking approach to constitutional change. 20 I suggest that sunrise
clauses should be employed to operationalize this forward-looking perspective and consider
future contingencies that given the history of the country can be predicted by the constituent
power.
In Section 4, I analyze a judicial decision of the Irish Supreme Court where the
constitutionality of sunrise clauses was challenged. In light of this case, I argue that sunrise
clauses are valuable instruments of constitutional change and ‘self-amendment’, which find
their legitimacy directly in the constituent power. The constitutional intergenerational
dialogue does not imply that all provisions should enter into effect at the same time. Rather,
the constitutional will formulated in some provisions may remain dormant, “sunrising” at a
later date or upon the verification of a certain condition.
2. Sunrise Clauses
Sunrise clauses can be broadly defined as dispositions providing that a constitutional
provision only comes into force on a specific date or that its coming into effect is contingent
upon the verification of specific conditions.21 Sunrise clauses are a form of legal condition
which have been employed in constitutions, primary and secondary legislation, and
international treaties. 22 Sunrise clauses are forward-looking instruments which determine
20
See Andras Sajó, ‘Preferred Generations: A Paradox of Restoration’ (1993) 14 Cardozo Law Review 847.
See Mark Freeman, Necessary Evils: Amnesties and The Search for Justice (Cambridge: Cambridge
University Press 2009) 142.
22
For a historical perspective on the use of contingent legislation and contingent provisions in interstate
commerce, see John Preston Comer, Legislative Functions of National Administrative Authorities (Clark, N.J.,
The Law Book Exchange, 1927) 63-70. For some types of treaties, such as humanitarian law conventions (e.g.,
Geneva Convention of 1949), the effective date of the withdrawal from a treaty can be made contingent upon
21
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that a provision shall remain dormant for a certain period. Their rationale is determined by
the need to take into account conditions that are not yet verified at that time.
Although contingent constitutionalism has been studied in the United States to
explain the interdependence between constitutional rights and state law,23 the concepts of
contingent constitutional change and sunrise clauses as instruments of constitutional change
have remained underexplored.
24
Contingent legal instruments have been historically
employed in the legislative and constitutional contexts not only in the United States but also
in other common law (e.g., India, Ireland) and, to a smaller extent, civil law countries. (e.g.,
Belgium). In this section, I start by providing an overview of the use of different types of
sunrise clauses in legislation. I then distinguish between automatic and contingent
constitutional sunrise clauses, and explain the difference between these provisions and bylaws.
A sunrise clause is a constitutional disposition that determines that a part of that
constitution will only come into force after a specific date in the future or its commencement
will be contingent upon the verification of specific conditions.25 Sunrise clauses bear thus a
strong resemblance to contingent legislation and tie-barring provisions since these three
legislative instruments share a common feature: the coming into effect of certain provisions
is delayed and it is conditional. Until a future event occurs, the dispositions lie dormant.
external events, such as the cessation of an existing armed conflict, see Laurence R. Helfer, ‘Terminating
Treaties’, in Duncan Hollis (Ed.), The Oxford Guide to Treaties (Oxford: Oxford University Press) 634, 642.
23
See Wayne A. Logan, ‘Contingent Constitutionalism: State and Local Criminal Laws and the Applicability
of Federal Constitutional Rights’ (2009) 51 William & Mary Law Review 143; Michael Manheimmer, ‘The
Contingent Fourth Amendment’ (2015) 64 Emory Law Journal 1229.
24
As this chapter explains below, in the United States, Akhil Amar has regretted the limited use of sunrise
clauses in the Constitution, see Akhil Reed Amar, America’s Unwritten Constitution: The Precedents and
Principles We Live By (New York: Basic Books 2012) 474-476; Akhil Reed Amar & Sanford Levinson, ‘What
Do We Talk About When We Talk About the Constitution?’ (2013) 91 Texas Law Review 1119, 1143.
25
See Mark Freeman, Necessary Evils: Amnesties and The Search for Justice (Cambridge: Cambridge
University Press 2009) 142.
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Although sunrise clauses have not been widely discussed in the comparative constitutional
law literature, this does not mean that they have never analyzed by prominent scholars26 or
considered by constitutional drafters as an option for accommodating constitutional change.
In the literature, Akhil Amar recently suggested that the framers should have adopted this
approach for issues such as secession and slavery. 27 They did not and thus erred,
surrendering the future, “giving slavocrats extra political clout in every election in
perpetuity”. Amar argues:
“just as the Constitution allowed the transatlantic slave trade to continue for twenty
years but provided that Congress could ban this odious traffic in 1808 and thereafter,
so the document should have allowed slave states to get extra credit in the House and
electoral college (…) but not thereafter.”28
Since in 1789 slavery was already perceived by many as being “morally wrong”, Amar
contends that the framers should also then have agreed that after 1808 antislavery rules
would sunrise.29 While the proposition can only remain at the theoretical level in the case of
slavery, the use of sunrise clauses can have a more practical dimension in other issues, such
as that of self-determination or socioeconomic rights. From a normative perspective, the
promise of the sunrise of the appreciation of self-determination rights on a specific date or
upon the verification of specific conditions may guarantee enhanced consensus, avoid the
deferral of important decisions with constitutional value to the ever-changing legislature, and
complement sunset clauses by providing a timed follow-up.
26
See Akhil Reed Amar FN5 at 474-476.
See Amar FN5 at 474.
28
Akhil Reed Amar & Sanford Levinson, FN24 at 1143.
29
Amar & Levinson FN 24 at 1143.
27
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2.1. Automatic and Contingent Sunrise Clauses
Sunrise clauses can be automatic when their commencement is determined by
objective events, that is, only the effective date of a constitutional provision is delayed. In a
certain sense, automatic sunrise clauses bear a resemblance to the so-called commencement
clauses” which define an exceptional date of coming into effect in order to avoid the
retroactive application of a new law which would occur if general rules would be applied.30
Contingent sunrise clauses determine that the entering into force of a provision is
dependent on a subset of factual or legal conditions. The commencement of a clause can
therefore be “tied” to a legal action which requires the intervention of the Parliament or the
Executive. This is the case of the enactment of a statute or the results of a referendum
organized at a later date (e.g., a sunrise clause on the future secession of a province or state).
2.2.1. Automatic Sunrise Clauses
Automatic sunrise clauses merely delay the commencement of a constitutional
provision. This form of sunrise clause determines when a provision constitution should begin
in order to avoid its premature coming into effect. In addition, its main goal is to avoid
immediate commencement according to general rules on publication and commencement of
laws or delay the commencement of a law for a longer period until legal or administrative
problems regarding the new act are solved. The difference between this first type of sunrise
clause and other forms of sunrise clauses can be at times almost imperceptible as the latter
can also grant some flexibility regarding the date of coming into effect of a law. 31 The
30
Mark Gobi, ‘When to Begin: A Study of New Zealand Commencement Clauses with Regard to those Used in
the United Kingdom, Australia, and the United States’ (2010) 31 (3) Statute Law Review 153. 31
Mark Gobi, ‘When to Begin: A Study of New Zealand Commencement Clauses with Regard to those Used in
the United Kingdom, Australia, and the United States’ (2010) 31 (3) Statute Law Review 153, 186.
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correct timing of the coming into effect of a constitutional provision is relevant since it may
determine the success of the operationalization of the constitutional change.
Within this category of sunrise clauses, we can also find sunrise clauses which might
be associated with sunset clauses in two different ways. First, we may find constitutional
dispositions that sunrise naturally, for example, after the termination of an interim
constitution or set of dispositions. Second, some clauses may also have a contingent sunrise,
if they do not commence within a certain period, the provisions expire. An example of the
latter can be found in Section 2 of the Twenty-second Amendment of the U.S.
Constitution,32 which reads:
“This article shall be inoperative unless it shall have been ratified as an amendment to
the Constitution by the legislatures of three-fourths of the several states within seven
years from the date of its submission to the states by the Congress.”
2.2.2. Contingent Sunrise Clauses
Contrary to automatic sunrise clauses, contingent sunrise clauses determine that the
coming into effect of a provision or constitutional amendment is dependent upon an
objective event such as the ratification of a number of states, a subjective condition (e.g., in
the case of aspirational contingencies as explained in section 3) or the adoption of
operationalizing legislation. An example of the first type of contingency can be identified in
Article XIV of the Constitution of Maryland which determines that:
32
See The Constitution of the United States, Amendment XXII. This type of sunrise/sunset clause is also
present in other amendments of the Constitution of the United States, see, for example, section 3 of the
Twenty-first Amendment which repealed the Eighteenth Amendment.
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“any Constitution, or change, or amendment of the existing Constitution, which may
be adopted by such Convention, shall be submitted to the voters of this State, and shall have
no effect unless the same shall have been adopted by a majority of the voters voting thereon.”
The establishment of dependency relations between dispositions have been present
both on legislative and constitutional levels. The practice of making the coming into effect of
one law dependent on the enactment of another one has been called tie-barring at the
legislative level and has raised a number of legal issues. A similar rationale has been applied
on the constitutional level with contingent sunrise clauses. Article 35 of the Belgian
Constitution is an example of this type of sunrise clauses, since the transitional disposition
included in this article determines that the constitutional provision on communal and
regional powers will only enter into effect after a statute listing the exclusive powers of
federation is enacted. This article reads:
The federal authority only has competences in the matters that are formally assigned to
it by the Constitution and the laws passed by virtue of the Constitution itself. The
Communities and the Regions, each in its own field of concern, have competences for
the other matters, under the conditions and in the terms stipulated by the law. This law
must be adopted by a majority as described Article 4, last paragraph.
Transitional provision The law referred to in the second paragraph determines the date
on which this article comes into force. This date cannot precede the date of the entry
into force of the new article to be inserted in Title III of the Constitution, which
determines the competences exclusive to the federal authority.
Since the subject underlying Article 35 has proven to be highly controversial in Belgium,
this constitutional provision still lies dormant.
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Contingent sunrise clauses can become problematic when constitutional sunrise
clauses imply discretionary decisions of the Executive on highly subjective concepts
employed as contingencies (e.g., the gradual concretization of rights). In a number of
developing countries, the right to education, for example, is presented as an aspirational right
or made contingent upon “the economic capacity and development” of the country (e.g.,
article 41 of the Indian Constitution). One of the challenges of contingent sunrise clauses
refers to the identification of the correct condition or the risk that the contingency is too
vague to be ever triggered. Sunrise clauses that use vague language and subjective conditions
for example in the context of aspirational constitutionalism may therefore be devoid of
meaning.
2.3. Sunrise Clauses and the Use of Conditions
Although sunrise clauses are underanalyzed instruments, the use of conditions is
inherent to law and it should hence not be overlooked in the context of constitutional law. In
this section, I support this claim by analogizing constitutions with long-term contracts which
often require condition-precedent and condition-subject clauses to meet the concerns of the
parties regarding future changes. 33 I draw upon a 1996 decision of the South African
Constitutional Court which examined the validity of the sunrise clauses included in the
KwaZulu-Natal constitution.34
33
The contractual terminology was also used by the Irish Supreme Court in the case analyzed in section 4.
Constitutional Court of South Africa, Certification of the Constitution of the Province of KwaZulu, Case
CCT 15/96, September 6, 1996.
34
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A constitution is a long-term contract which, according to empirical research,
typically lasts nineteen years,35 which might be less than many of our financial and personal
contractual. In most long-term contracts, the central contractual object is deemed to endure,
but, in order to fit changing circumstances and accommodate foreseeable issues, the parties
may agree to include condition-subsequent clauses, in common law, or the so-called
‘resolutory clauses’ in civil law.36 These clauses update and shape the original content of the
contract, by determining the termination of certain contractual elements. In the concrete case
of constitutions, sunset clauses determine the termination of obsolete constitutional
dispositions or guarantee smooth constitutional transitions, for example from dictatorial to
democratic regimes. A much less common instrument in the constitutional context is, what
in contractual terms one would call “condition-precedent” clauses (or “suspensive clauses”
in civil law). These clauses determine that a certain disposition will be inactive until a
specific date or its coming into effect will be contingent upon a set of facts or upon the
verification of a specific condition.37 These “sunrise clauses” are a form of “contingency law”
since they establish that the effects of one disposition will be dependent on the verification
of certain conditions.
In 1996, the South African Constitutional Court was asked to validate a provincial
constitution containing a number of sunrise clauses. In March 1996, the IFP38 announced
that the provincial constitution would include a sunrise clause reflecting the provincial
35
Zachary Elkins, Tom Ginsburg, James Melton, The Endurance of National Constitutions ( Cambridge
University Press, 2009).
36
For the clarification of this terminology, see, e.g., Bénédicte Fauvarque, ‘Position Paper on Conditions,
Unidroit, Working Group for the Preparation of the Principles of International Commercial Contracts’,
UNIDROIT (2007) 10, available at http://www.unidroit.org/english/documents/2007/study50/s-50-103-e.pdf
37
This analogy was also made by the Constitutional Court of South Africa in the assessment of the
constitutionality of the provincial constitution of KwaZulu-Natal in 1995 (see below for more information on
this example).
38
Inkatha Freedom Party, still nowadays one of the largest political parties in South Africa.
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powers this party wished to secure for the province of KwaZulu-Natal.39 These provisions
would allegedly guarantee that this province would benefit from a higher degree of
autonomy after and if the definitive national constitution would come into effect.40 Until then,
a number of sections would lie dormant, waiting for that automatic trigger—the enactment of
the new Constitution—to be pulled. The South African Constitutional Court did not validate
this provincial constitution, since these clauses violated the Interim Constitution valid at that
time.
The Court considered that the provincial constitution was fundamentally flawed on
three grounds: usurpation of national powers, 41 consistency clauses and ‘suspensive
conditions.’42
The Constitutional Court considered that the ‘suspensive clauses’ could not be
qualified as unwritten or inexistent just because they would commence later and were
dependent upon a certain condition. Comparing these clauses to contractual ones, the Court
argued that:
39
O.
Malley,
‘Increased
Repression
and
Continued
Attack
in
1995,
in
https://www.nelsonmandela.org/omalley/cis/omalley/OMalleyWeb/03lv02424/04lv03275/05lv03336/06lv0334
4/07lv03354/08lv03358.htm
40
The negotiation of constitutional principles was particularly complex in the post-apartheid period when the
different parties involved diverged as to the objectives and structure of the transition. A problematic case was
KwaZulu-Natal, where there was significant resistance to the national government. The Zulu king was at the
time struggling to demonstrate his authority and reject central government and its influence. The local
legislature began working on a provincial constitution design to maintain a kingdom within the South African
republic, establish a constitutional monarchy and guarantee independent control over security forces in the
province. See Africa Confidential, vol. 37, 5 July 1996, p. 64 (“a series of provincial powers would remain
inactive until the national constitution came into force”). According to section 160 (1) of the 1993 Constitution
of South Africa (the ‘Interim Constitution’), the provincial legislatures were entitled to pass a constitution for
their provinces. The provincial constitution had to be certified by the then recently established Constitutional
Court of South Africa that had the task of guaranteeing that none of its provisions was inconsistent with the
Interim Constitution. In order to pass the test of the Constitutional Court, KwaZulu-Natal decided an ingenious
plan which included making the coming into effect of most controversial constitutional provisions contingent
upon the enactment of the new and permanent South African Constitution. See Theuns Eloff, ‘Managing
Negotiations: Lessons and Pitfalls 1990-1994’, in Bertus de Villiers, Jabu Sindane (eds), Managing
Constitutional Change (Pretoria: HSRC Publishers, 1996), 1, 8.
41
Constitutional Court (South Africa), Certification of the Kwazulu-Natal Constitution (CCT15/96) [1996]
ZACC 17; 1996 (11) BCLR 1419; 1996 (4) SA 1098 (6 September 1996) [14]
42
South Africa is a bi-juridical or a mixed system of law with Roman Dutch civil law and common law, which
explains the civil law terminology here.
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“it is well established that in the field of contract an agreement subject to a suspensive
condition is already a binding agreement, that its terms are clearly established and that,
for example, a provisional creditor may, even before the condition precedent has been
fulfilled, institute proceedings to protect such creditor’s provisional right.1[9] But what
is clear is that merely to suspend part of the text of a provincial constitution that is
inconsistent with the interim Constitution, cannot save the constitution from the
consequence of such inconsistency.
The Court added that:
“A suspended provision is part of the text, and it does not cease to be such simply
because its operation is suspended until a future date, or is made contingent upon the
happening of a future event. The text of the provincial Constitution is to be evaluated
and certified as an integrated whole, because the meaning and effect of one particular
clause can be crucially dependent on that of another. If certain clauses of the text come
into operation after others, then the fact that certain clauses are inoperative for a period
of time may well influence the effect and meaning of those parts of the text which do
come into operation immediately upon certification in the absence of the suspended
clauses.”43
In this case, the inclusion of sunrise clauses by itself was not contested. Rather, due to the
lack of other rules to assess its validity, the South African Court solved the controversy by
referring to the common use of conditions in contract law and interpreting these sunrise
clauses according to the analogy, that is, in light of the ‘entire contract’. In this specific case,
more was at stake than an inter-temporal problem. Instead, the sunrise clauses were a
disguised attempt to circumvent the Interim Constitution, making the coming into effect of
43
Constitutional Court (South Africa), Certification of the Kwazulu-Natal Constitution (CCT15/96) [1996]
ZACC 17; 1996 (11) BCLR 1419; 1996 (4) SA 1098 (6 September 1996) [39] [41].
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the provincial powers contingent upon the enactment of the definitive constitution, which
according to the predictions of that time, would be potentially more favorable to the selfdetermination of the province.
2.4. Sunrise Clauses and By-Laws
Constitutional dispositions often delegate constitutional decisions to Parliament (“bylaw clauses”) or determine that a certain disposition shall be regulated as “determined by
law”. 44 While the enactment of such “law” may hinder the practical concretization of a
constitutional right, the coming into effect of these dispositions is not at stake. As this
chapter explains, sunrise clauses are only effective upon the verification of a certain
condition and until that day arrives, they lie dormant.
By-law clauses do not delay constitutional decision-making to the future and in
particular to future legislatures. 45 Instead of a deferral, by-law clauses operationalize
delegation. They decide who should have the power to legislate on a certain matter and
determine that the legislature is the most competent body to do so. Tom Ginsburg and
Rosalind Dixon have argued that “by-law clauses” can avoid the ambiguity of constitutional
silences, minimize design costs and error costs in the constitutional-making process.46 These
clauses can either “require the legislature to decide certain constitutional issues in the future,
or else explicitly empower the legislature to decide such issues.”47 Ginsburg and Dixon
contend that by-law clauses consist in explicit delegations to future decision-makers to
decide on a specific constitutional question. However, once we look closely, by-law clauses
do not “defer the right to decide” to the legislature, as the title of Ginsburg and Dixon’s work
suggests. Rather, they identify actions that must taken by the legislature through legislation,
44
See Rosalind Dixon & Tom Ginsburg FN6.
On by-law clauses, see Rosalind Dixon & Tom Ginsburg FN6.
46
See Rosalind Dixon & Tom Ginsburg FN6 at 639.
47
Idem, Ibidem.
45
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rather than by the Executive. They delegate the right to decide to the legislature. Contrary to
by-law clauses, sunrise clauses make a constitutional decision and defer the coming into
effect of the provision. In the case of contingent sunrise clauses, the verification of a
condition might rest upon the legislature or the executive government, but also here, the
central constitutional decision has been previously made by the constituent power.
3. Contingent Constitutional Change between Retrospective and Foresight
As democracies change over time, either as a result of a succession of gradual or
disruptive events, so do constitutions.48 Constitutional change was traditionally thought to
operate exclusively according to formal amendment procedures and to be limited by
supermajoritarian requirements.
49
More recently, the less institutionalized paths of
constitutional amendment and the problem of ‘unconstitutional constitutional amendments’
initiated an intense debate in the literature.50 The idea of contingent or delayed constitutional
change has nonetheless remained overlooked in the comparative legal literature.
48
For a historical perspective on constitutional and legislative change, see Melissa Schwartzberg, Democracy
and Legal Change (New York, Cambridge University Press, 2009); see also Barry Friedman, Scott B. Smith,
‘The Sedimentary Constitution’ (1998) 147 University of Pennsylvania Law Review 20.
49
For an overview and comparison of the majority requirements for constitutional amendments in a number of
countries, see Xenophon Contiades (Eds.), Engineering Constitutional Change: A Comparative Perspective on
Europe, Canada and the USA (London: Routledge, 2013).
50
On other paths to amend the Constitution beyond Article V of the Constitution of the United States, see
generally Bruce Ackerman, We the People: Foundations (Harvard University Press, 1993); more specifically,
on constitutional amendment procedures and rules, see Richard Albert, ‘Amending Constitutional Amendment
Rules’ (2015) International Journal of Constitutional Law (forthcoming); Richard Albert, ‘Constitutional
Amendment by Constitutional Desuetude’ (2014) 62 American Journal of Comparative Law 641. There is a
vast literature on unconstitutional constitutional amendments, see, e.g., Aharon Barak, ‘Unconstitutional
Constitutional Amendments’ (2011) 44 Israel Law Review 321; Jason Mazzone, ‘Unamendments’(2005) 90
Iowa Law Review 1746; Richard Albert, ‘Nonconstitutional Amendments’ (2009) 22(1) Canadian Journal of
Law & Jurisprudence 5; Carlos Bernal, ‘Unconstitutional constitutional amendments in the case study of
Colombia: An analysis of the justification and meaning of the constitutional replacement doctrine’ (2013) 11
International Journal of Constitutional Law 339.
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Constitutional change is a problem for the legal enforcement of constitutions enacted
in the wake of conflicts or other unsettling events.51 On the one hand, constitutional change
is antithetic to the most fundamental desire to guarantee constitutional stability and avoid the
high costs of constitutional instability at the political, economic and social levels.52 On the
other, constitutions do not live as long as we would like them to, they “do not age well”, and
tend to obsolesce rapidly.53 Unsurprisingly, constitutions are often amended by desuetude,
that is, obsolete dispositions are silently amended because they are no longer implemented.54
Obsolete dispositions create nonetheless an undesirable feeling of uncertainty, which
could open the door to abusive litigation.55 In addition, while there is the traditional belief
that constitutional longevity and stability is particularly important for countries emerging
from post-conflicts, 56 there seem to be exceptions to the rule, proving that short-lived
constitutions (such as the 1997 Thai Constitution) can also produce an important impact in
the constitutional future of the country. 57 Striking the balance between stability and
constitutional change implies analyzing first the relationship between constitutions and time,
second, the instruments employed to confer a certain degree of stability to constitutions
without impeding change; and third, allow constitutions to take into consideration
51
Stephen M. Griffith, ‘The Problem of Constitutional Change’(1996) 70 Tulane Law Review 2121.
Philip A. Joseph & Gordon R. Walker, ‘A Theory of Constitutional Change’ (1987) 7(2) Oxford Journal of
Legal Studies 155, 175.
53
Adrian Vermeule, ‘Constitutional Amendments and the Constitutional Common Law’, in Richard W.
Bauman & Tsvi Kahana (Eds), The Least Examined Branch: Legislatures in the Modern State (New York:
Cambridge University Press, 2007) 229; On the ‘life expectancy’ of constitutions, see Zachary Elkins, Tom
Ginsburg, James Melton, The Endurance of National Constitutions (Cambridge University Press, 2009).
54
See Richard Albert, ‘Constitutional Amendment by Constitutional Desuetude’ (2014) 62 American Journal
of Comparative Law 641.
55
See Melissa J, Mitchell, ‘Cleaning up the Closet: Using Sunset Provisions to Clean up Cluttered Criminal
Codes’ (2005) 54 Emory Law Journal 1671.
56
See John Hatchard, ‘Establishing Popular and Durable National Constitutions in Commonwealth Africa’, in
Mads Andenas (Ed), The Creation and Amendment of Constitutional Norms (London, The British Institute of
International and Comparative Law, 2000) 1
57
See Tom Ginsburg, ‘Constitutional Afterlife: The Continuing Impact of Thailand’s Postpolitical Constitution’
(2009) 7(1) I.CON 83: Ginsburg describes the context in which the 1997 Interim Thai Constitution was
adopted and examines how some of its institutional innovations (such as the introduction of judicial review)
were passed on to the constitution that superseded it.
52
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unpredictable or future circumstances. It is in this last context that the idea of contingent
constitutional change as operationalized by sunrise clauses emerges.
Constitutions are compromises between the political forces present at the time of the
drafting, the desire to shape posterity, and potential contingencies that may occur in the
meanwhile. The evolution of democracy might be highly dependent on present and future
contingencies.58 These contingencies are not only interpreted in the sense of ‘emergencies’
but rather more broadly as ‘future and sometimes unpredictable circumstances’, which have
not been analyzed in the context of the constitutional change. The hermeneutics of
constitutional change require not only an analysis of past and present facts, but also a
predictive theory of constitutionalism, which can tell us “what is occurring or, better, what
will occur.”59 Traditional constitutionalism is often backward-looking placing considerable
emphasis on the drafting moment, expecting the constitution to become entrenched as it is.60
However, particularly in the contexts of transition, the constitution should also be allowed to
play a predictive role, allowing the constitutional project to deal with potential legitimacy
deficits in a more gradual way.61
A theory of constitutional change must thus encompass a backward-looking and a
forward-looking approach to this intergenerational approach. In the next subsection I explain
why timing clauses such as sunset and sunrise provisions can promote a forward-looking
approach to constitutional change.
58
See Adam Przeworski, ‘Democracy as a Contingent Outcome of Conflicts’, in Jon Elster & Rune Slagstad
(Eds.), Constitutionalism and Democracy (Cambridge: Cambridge University Press, 1988) 64-66.
59
Philip A. Joseph & Gordon R. Walker, ‘A Theory of Constitutional Change’ (1987) 7(2) Oxford Journal of
Legal Studies 155, 171.
60
Catherine Dupré, Jiunn-rong Yeh, ‘Constitutions and Legitimacy over Time”, in Mark Tushnet, Thomas
Fleiner, Cheryl Saunders, Routledge Handbook of Constitutional Law (London: Routledge, 2013) 45, 52.
61
Catherine Dupré, Jiunn-rong Yeh, FN60 at 45, 53.
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A forward-looking approach to constitutional change can have multiple expressions.
Constitutions can use sunset clauses to terminate constitutional provisions or interim
constitutions; promote the openness of the constitutional text, for example, by employing
vague constitutional language, 62 indeterminate concepts, constitutional silences, 63 or as
mentioned in section 2 by deferring further decisions to the legislator; or by including
sunrise clauses.
3.1. Sunset Clauses Temporality, by determining the automatic termination of constitutions at the end of
a fixed period, is meant to be an expression of a forward-looking approach to constitutional
change. Thomas Jefferson famously argued in 1789 that “No society can make a perpetual
constitution, or even a perpetual law. The earth belongs always to the living generation.”64
Jefferson pleaded for temporary constitutions that would reign over one generation and then
expire automatically. Sunset clauses can connect our idea of justice with that of “our
posterity” by acknowledging that some constitutional dispositions that respond to specific
concerns of our generation (e.g., ensuring transition from an authoritarian regime to
democracy) should not last beyond “ourselves”. For example, in January 1776, New
Hampshire adopted a simplistic Constitution which might not have been intended to endure
62
On constitutional language, see, e.g., Frederick Schauer, ‘An Essay on Constitutional Language’ (1981) 29
UCLA Law Review 803. On constitutional indeterminacy in the Constitution of the United States, see Michael
Klarman, ‘Fidelity, Indeterminacy, and the Problem of Constitutional Evil’ (1997) 65 Fordham Law Review
1739.
63
Constitutional silences are not necessarily cartes blanches for Parliament to legislate on constitutional
matters not listed in the constitution. See Daniel N. Hoffman, Our Elusive Constitution: Silences, Paradoxes,
Priorities (Albany, S.U.N.Y. Press, 1997); Laurence Tribe, ‘Toward a Syntax of the Unsaid: Construing the
Sounds of Congressional and Constitutional Silence’ (1982) 57 Indiana Law Journal 524.
64
Thomas Jefferson, Letter to James Madison, September 6, 1789, in The Federalist Papers Project available
at <http://www.thefederalistpapers.org/founders/jefferson/thomas-jefferson-september-6-1789, accessed on
19.08.2013: this letter referred to the possibility ‘of the representatives of a nation validly engage debts beyond
what they may pay in their own time, that is to say, within thirty-four years of the date of the engagement’.
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but rather to timely reject the colonial charters under which it had been governed.65 In the
1990s, Hungary and South Africa drafted Interim constitutions to respond to transitional
problems, and more recently, Thailand also adopted a temporary constitution.66
Sunset clauses67 are dispositions that determine the termination of a law, constitution
or parts of it within a beforehand determined period.68 These provisions are conceived to
automatically ‘erase’ a provision or a constitution which is no longer necessary either
because it has fulfilled its function or because it is no longer effective.
Although there are multiple examples of temporary constitutions (e.g., interim
constitutions in South Africa, Hungary, Thailand) and temporary constitutional dispositions
(e.g., state constitutions in the United States), Jefferson’s plea for temporary constitutions
was not widely embraced in most countries, where the idea of a temporary constitution
appears to be contrary to the dominant view of enduring constitutions. Temporary
constitutions seem to have served primarily transitional purposes and not generational ones.
Although Jefferson considered temporality as a form of unchaining the future generations
from past commitments, sunset clauses also constrain the constituent power, by determining
when certain clauses should automatically “sunset” without relying on the future generations
judgment on whether the disposition should be maintained or not.69
65
John Dinan, ‘American Constitutions: Natural Law and Constitution-Making in the Founding Era’, in
American Founding and Constitutionalism, available at http://www.nlnrac.org/american/founding-eraconstitution-making
66
For a thorough analysis of temporary constitutions, see Ozan O. Varol FN12 at 409.
67
It is important to distinguish between ‘sunset clauses’ and ‘sunrise clauses’: While sunset clauses determine
the termination of a law or some of its dispositions, sunrise clauses, on the contrary, only determine that a law
will come into effect later on a certain date. Until that period, the clause will be inactive. See Mark Freeman,
Necessary Evils: Amnesties and The Search for Justice (Cambridge: Cambridge University Press 2009) 142.
68
On the definition of ‘sunset clause’, see Parliament of the United Kingdom, Glossary, [“sunset clause”],
available at http://www.parliament.uk/site-information/glossary/sunset-clause/ (“A provision in a Bill that gives
it an 'expiry date' once it is passed into law. 'Sunset clauses' are included in legislation when it is felt that
Parliament should have the chance to decide on its merits again after a fixed period.”).
69
Zachary Elkins, Tom Ginsburg, James Melton, The Endurance of National Constitutions ( Cambridge
University Press, 2009) at 13 (“a sunset clause arguably constrains future generations as much, and perhaps
more, than does presumed permanence. Why should citizens artificially abandon a well-functioning
constitution simply because it has reached a certain age?”).
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3.2. Sunrise Clauses and Aspirational Constitutionalism A forward-looking approach to constitutional change includes an explicit
acknowledgement of the need to construct the constitutional project gradually. Constitutions
might confer the power to operate this gradualism to legislators (e.g., Article 242 of the
Constitution of Angola) or predict these contingencies in their texts, delaying the coming
into effect of certain constitutional provisions. An example of the latter has emerged in the
context of aspirational provisions.
In post-conflict societies and developing countries, the drafters may resort to sunrise
clauses to allow certain rights to sunrise when the economic and political conditions are
more auspicious. Even when such sunrise is timed, the sunrise of rights or provisions
containing vague language may however imply a great amount of discretion. This was the
case of Directive 45 of the Indian Constitution, which read, in the first version of the
Constitution:70
Provision for free and compulsory education for children: The State shall endeavor to
provide, within a period of ten years from the commencement of this Constitution, for
free and compulsory education for all children until they complete the age of fourteen
years.
The ‘endeavors’ of this country took however much longer than the initial ten-year period
and the right to education was only to sunrise many decades later, with the 2002
constitutional amendment. The potential late sunrise of provisions is thus a risk present in
70
India amended its constitution in 2002 to include a right to education.
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vaguely formulated clauses that in this case might not have given the State sufficient
incentives to ‘pull the trigger’ and initiate the sunrise of the provision.
Aspirational constitutionalism is a clear form of contingent constitutionalism which
tries to bridge the wishes of past and future generations, as well as the different social,
economic, and political circumstances they may be confronted with. Aspirational
constitutionalism refers to “a process of constitution building (…) in which constitutional
decision makers understand what they are doing in terms of goals that they want to achieve
and aspirations that they want to live up to.” 71 These aspirations can be present in the
preambles of constitutions, in the choice of institutional design and arrangement of lists of
rights.72 Sunrise clauses can also concretize such aspirational goals. This forward-looking
approach is often contingent upon economic, social, and political circumstances of a country.
The Constitution of South Africa includes a number of forward-looking and aspirational
clauses that translate the different gradation of this perspective. This is the case of Article 29:
“(1) Everyone has the right— (a) to a basic education, including adult basic education;
and (b) to further education, which the state, through reasonable measures, must make
progressively available and accessible.”
In South Africa, sunset and sunrise clauses appear to have played an important role in
conflict resolution both in constitutional and lawmaking areas. These clauses embody the
acknowledgement that not “all aspirations can be immediately met without destroying the
demands made by adversaries and these aspirations might not also be met at the same time or
in short-term.”73 In the post-apartheid context, the gap between rich and poor was trying to
be solved by the inclusion of numerous socioeconomic rights in the constitution such as the
71
Kim Lane Scheppele, ‘Aspirational and Aversive Constitutionalism: The Case for Studying Crossconstitutional Influence through Negative Models’ (2003) 1(2) I.CON 296, 299.
72
Kim Lane Scheppele FN71 at 299.
73
Charles Villa-Vicencio, Walk with us and Listen: Political Reconciliation in Africa (Washington, D.C.,
Georgetown University Press, 2009) 85.
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right of access to education, housing, health care. Although these rights could not be
immediately met, using sunset and sunrise clauses “could ensure that [such] aspirations do
not fall off the national agenda”.74
Sunrise clauses formalize this forward-looking approach by predicting future
contingencies (e.g., a referendum, enactment of a statute). The inclusion of these dispositions
does not make the constitutional project incomplete but in permanent dialogue with the
future. Both sunset and sunrise clauses impose this dialogue. Sunrise clauses address
however a different side of inter-temporality: They reflect the acknowledgement of the need
to decide a constitutional matter by determining determine that society is not yet ready to
embrace it or might only be, when and if certain conditions are satisfied. Therefore, the past
generation attempts to make predictions about the future generation wishes, the same way
sunset clauses assume that our future-selves might not wish to be bound by the exceptional
powers contained in an interim constitution.
4. The Constitutionality of Sunrise Clauses
This Section starts with the discussion of an Irish case involving a less visible form of
contingent constitutional change but which also had self-determination roots: Riordan v. An
Taoiseach. The applicant objected to the fact that the Irish Constitution was only to be
amended once certain other events—in this case, a referendum, had taken place to the
“satisfaction of the Government”. He contended that the constitutional amendment
procedure of article 46 of the Irish Constitution had been violated.
74
Charles Villa-Vicencio, FN73 at 85.
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This section also delves into the legitimacy of constitutional sunrise clauses and their
ability to operate “self-amendments” when they are not dependent on subjective
contingencies or events that imply the intervention of other institutions.
4.1. Riordan v An Taoiseach
Riordan v. Taoiseach was a case decided in 1999 by the Irish Supreme Court,75 in the wake
of the 1998 Belfast Agreement, which involved three interdependent components: first, an
agreement between the political parties in Northern Ireland as to the internal structures for
Northern Ireland; second, an agreement between the Northern Ireland parties and the Irish
Government about the establishment of a number of all-Ireland institutions; third, an
agreement between the United Kingdom and Ireland. In this context, the Irish government
committed to seeking the repeal of Articles 2 and 3 of the Constitution, which made a
territorial claim to Northern Ireland.
According to the formal constitutional amendment laid down in article 46 of the Irish
Constitution, a referendum was compulsory to effectuate such an amendment. However, in
this particular case, the success of the amendment was dependent on the result of another
referendum in Northern Ireland on the same issues.76 First, the IRA claimed that it was the
legitimate government for the whole island of Ireland, as it was the successor of the second
Dáil (Assembly), the last body to be elected on the basis of an all-Ireland vote. Second, since
the 1998 Belfast Agreement was a negotiated agreement, simultaneous agreement was
required from the different parties. The only exit under these circumstances was to establish
75
Denis Riordan Applicant v. An Taoiseach Bertie Ahern, The Government of Ireland, (No. 2), 1998 No. 213
J.R., S.C. No. 202 of 1998.
76
I thank Oran Doyle for the contextual information on this case.
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a conditional amendment to Articles 2 and 3, relying on the results of the referenda taking
place on the same day. These facts triggered the case Riordan v. Taoiseach, where the
applicant challenged this constitutional amendment, arguing that the procedure of Article 46
had been violated since the amendment was not only dependent on a constitutional
referendum, but also on external events, i.e., the referendum in Northern Ireland. The two
decision-making moments were therefore ‘tie-barred’ (see above). As the Supreme Court
explained:
“before any amendment to Articles 2 or 3 can occur, two conditions precedent must be
met. They are the coming into effect of the British/Irish Agreement (…) and the
declaration of the Government to the effect that the State has become obliged, pursuant
to the multi-party agreement, to give effect to the amendment to the Constitution.”
The Supreme Court rejected the applicant’s arguments. Previously the High Court had
already explained that:
“The applicant ha[d] failed to understand the problem which confronted the
Government in relation to the Belfast Agreement. That agreement imposed reciprocal
obligations on the various parties to it and each party wished to be reassured that the
other parties would carry out their respective obligations. For instance the Irish
Government undertook to have Articles 2 and 3 of the Constitution amended but only
on the basis that the British Government and the unionist parties to the Agreement
would establish the power sharing executive and the cross-border bodies contemplated
in the Agreement. On the other hand, the British Government and the Unionist parties
did not wish to establish the power sharing executive and the cross-border bodies only
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to find that the proposal to amend Articles 2 and 3 was defeated in a constitutional
referendum.”
Both the Supreme Court and the High Court agreed on the validity and necessity of the
“condition-precedent,” or sunrise clauses. The High Court underlined:
“The people have a sovereign right to grant or withhold approval to an amendment to
the Constitution. There is no reason therefore why they should not, provided the matter
is properly placed before them, give their approval subject to a condition. It is quite
wrong to suggest that the people have delegated to the Government the right to amend
the Constitution. This is not so. The people have consented to an amendment to the
Constitution subject to the happening of a particular future event.
In this case, a contingency was necessary for the operation of constitutional change, adding
an additional burden to the formal constitutional amendment process. Also, contrary to the
South African decision on the sunrise clauses in the constitution of KwaZulu Natal, the
contingency included in the Irish case was not being used to circumvent the constitution but
rather to promote one of its core values: peace in Northern Ireland.
As this case demonstrates, the existence of a condition and connected contingencies
taking place outside the Irish Constitution was not judged unconstitutional. This case
illustrates however a different dimension of constitutional sunrise clauses since the
contingency is not imposed by the Constitution but by an international agreement between
Ireland and the United Kingdom.
Although this relationship of ‘condition-precedence’ could be contested, the process
of constitutional change and the contingency seem to be logically interconnected. This logic
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interconnection or tie-barring does not only result from the Irish Supreme and Irish Courts,
but it has also been defended, under different circumstances, in U.S. state and federal courts
deciding on contingency-legislation and more specifically tie-barring provisions. According
to some states constitutions (e.g., Florida, Michigan), the validity of one bill may not be
made contingent upon the passage of another one. According to the case law of state courts,
tie-barring does not violate the mentioned constitutional provision as long as there “is a
reasonable relationship between the statutes which have been tie-barred to each other” or a
“direct and relative interdependence between them.”
77
Although this criterion has been
developed in a different setting, the logic interdependence between the sunrise of a provision
and its contingency appear to be a reasonable rule applicable to any contingent sunrise
clauses discussed in this chapter.
4.2. Sunrise Clauses and the Constituent Power
Following the Irish case, I explain in this section why the constituent power should be
allowed to include sunrise clauses in the constitutional text, deferring the coming into effect
77
See Re Advisory Opinion to the Governor, 239 So 2d 1, 9 (Fla 1970). See also Gaulden v. Kirk, 47 So 3d 567
(Fla 1950). Town of San Mateo City v. State ex rel. Landis, 117 Fla. See also the Cargo Brig Aurora regarding
the revival of an act by proclamation of the President, and Field v. Clark, where the constitutionality of broad
contingent legislation was challenged. In Brig Aurora, the Court denied that the President was exercising
unwarranted discretion in reviving a law, although the reasons to revive the law were not established in the
statute at the time. See Cargo of the Brig Aurora v. United States, 11 U.S. 382 (1813). However, the enactment
of contingent legislation has also been criticized in the United States, particularly when the legislative acts are
found to be incomplete and uncertain until another agent acts. For a critique of contingent legislation, see
Thomas M. Cooley, Constitutional Limitations (Special ed. 1987) 121. See also Fred Kameny, ‘Are
Inseverability Clauses Constitutional?’ (2005) 68 Albany Law Review 957, 1016, citing 16 C.J.S. Constitutional
Law ß 166, at 532 (1984): “In any case, as a general rule, the enactment of the statute itself may not be made
contingent on the action of officers or people; the act must be complete in itself, must be made law by the
legislature, and only its effect and operation may be made dependent on the contingency.” For a more recent
study of severability and conditions in constitutional law, see Eric Fish, ‘Severability as Conditionality’ (2015)
64 Emory Law Journal 1298.
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of a constitutional provision to the future or requiring future generations to take further
actions in order to determine its commencement.
While automatic sunrise clauses can be triggered automatically, a contingent sunrise
clause imposes a deliberative burden on future generations. By doing so, sunrise clauses
distinguish themselves from other timing provisions such as sunset clauses that determine
the termination of a clause. Regardless of whether sunrise clauses leave some or no
discretion to the Executive or Parliament as to when and how to allow a certain provision to
sunrise, it is clear that they voice a constituent desire of constitutional change. Instead of
allowing the future generation to make the central decision on such change, sunrise clauses
enable the constitutional drafter to include it in the text and only defer its sunrise.
If such a constitutional change is operated automatically by simply delaying the
effective date of a provision, a self-amendment or an “autopoietic amendment” would
occur. 78 Such an amendment would operate regardless of existing formal constitutional
amendment procedures. This might seem disconnected from reality but it is not. For example,
in the case of a constitution enacted after a conflict, the constituent power may foresee that
the country will only be prepared to accept or concretize certain provisions at a later date
(e.g., articles 167 and 169 of the Weimar Constitution). In this sense, contingent
constitutional change is susceptible of materializing the traditional concept of the constituent
power as a rational and unlimited power (for a thorough discussion of the concept of of
78
I borrow the term from Niklas Luhmann and Gunther Teubner, but not entirely with the meaning developed
by these scholars, see Gunther Teubner, Autopoietic Law: A New Approach to Law and Society (Walter de
Gruyter, 1988).
30 Electronic copy available at: https://ssrn.com/abstract=2814118
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Constitutional Sunrise
constituent power see the chapter by Thomaz Pereira),79 which “even after the constitution is
adopted does not lose the right to alter its decision.”80
When sunrise clauses are triggered automatically, the constituent power sunrises,
resulting in a “self-amendment” of the constitution. This idea can seem at first problematic
as it blurs the concepts of “original constituent power”, the sovereign power to “make the
constitution”, and “derived constituent power”, the power to amend the constitution. 81
However, the legitimacy of these constitutional sunrise clauses is found in the original
constituent power, which comprehends the power to draft the constitution and determine
when it comes into effect.
The term ‘self-amendment’ might sound rather imprecise as it implies on the one
hand that sunrise clauses amend the constitution; and on the other, it is antithetical as the
constituent power only speaks once. Can sunrise clauses be qualified as alternative and
legitimate instruments of constitutional change? As Akhil Amar explains in the context of
sunrise clauses:
“at first, it might be wondered whether anything truly constitutional can be said about
which future amendments should be adopted. After all, We the People are free to adopt
just about any amendments we like.”82
79
See Emmanuel Sieyès, ‘What is the Third Estate?’(Hackett Publishing Company, Inc, 2003)
See Joel Colon-Rios, Weak Constitutionalism: Democratic Legitimacy and the Question of Constituent
Power (London: Routledge, 2012) 8. See also Martin Loughlin, ‘The Concept of Constituent Power’ (2014)
13(2) European Journal of Political Theory 218.
81
Referring to the distinction in the French literature between original constituent power, as the power to make
the constitution, and derived constituent power, as the power to enact and amend (“établir la constitution”), and
arguing that the power to amend constitutions is “sui generis” constituent power, see Yaniv Rosnai, ‘Towards a
Theory
of
Unamendability’
(2015)
Working
Paper,
available
at
http://www.academia.edu/11053169/TOWARDS_A_THEORY_OF_UNAMENDABILITY;On the traditional
definitions of original constituent power and derived constituted power in the French literature, see,.e.g., see
Georges Burdeau, Droit constitutionnel (Paris: L.G.D.J., 1988) 76-77; Kémal Gözler, Le pouvoir de révision
constitutionnelle (Villeneuve d’Ascq: Presses Universitaires du Septentrion, 1997) 9.
82
Amar FN5 at 451.
80
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Constitutional Sunrise
The constitution is a project with unwritten parts, which can be enlightened not only by the
legislature but also by the framers. Amar argues that, on a second thought, this
enlightenment regarding future amendments might be entirely constitutional depending on
the topics. Sunrise clauses can thus be interpreted as devices that shape the future trajectory
of the constitution. Amar suggests, for example, that a future amendment (or sunrise clause)
regarding the criminalization of flag-burning or the restriction of equality-rights of same-sex
couples should be rejected as such amendments “would do violence to the trajectory of the
American constitutional project over the past two hundred years.” Amar suggests however
different future amendments or sunrise clauses, such as those used by “various states in the
Founding era to achieve the gradual abolition of slavery itself. Under these rules, existing
slaves would not be liberated—but eventually their future children would walk free.”83
Sunrise clauses can thus potentially accommodate constitutional change without
requiring predictable constitutional amendments. These clauses can also constrain future
constitutional change by impeding the constituted powers to decide on the life of a certain
disposition.84 These instruments induce a process of “self-amendment” which is determined
by the constituent power in an attempt to avoid the perpetuation of dispositions motivated by
transitional concerns or insufficient information. 85 A sunrise clause may also provide
additional time to society to reach an agreement on controversial topics that the society
might not have been prepared to accept at the time of the drafting (e.g., the organization of a
referendum on secession or other self-determination rights) and concretize (e.g.
socioeconomic rights).
83
Amar, FN5 at 446.
See House of Lords, Select Committee on the Constitution, The Process of Constitutional Change, 15th
Report Session 2010-2012, 21 (“even without a codified constitution, it is possible to provide for specific
procedural requirements within constitutional bills, including such measures as (…) sunrise and sunset clauses,
and parliamentary super-majorities.”)
85
Temporary instruments are often used to gather information and overcome the cognitive bias that often
characterizes the lawmaking process, see Jacob E. Gersen, ‘Temporary Legislation’ (2007) 74 University of
Chicago Law Review 247.
84
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Constitutional Sunrise
In this context, it is important to emphasize that, at the resemblance of sunset clauses
and transitional provisions, the use of sunrise clauses should also be limited to constitutional
provisions that do not consecrate fundamental rights or state institutions necessary for the
normal functioning of the society at stake.86 This normative statement, based on the case-law
of the German Constitutional Court, implies a casuistic analysis which should consider the
political and economic situation of the country.
5. Conclusion
Time and constitutions are so intimately connected that it is often hard to separate them.87
The intertwining of past, present and future constitutional wills is personified in a
constitution that is supposed to live beyond its framers. A constitution implies multiple
commitments between the past, present, and future generations, and a more durable
constitution is commonly regarded as a shield against the whims of political power, shifting
political majorities and crises.88 However, “the past cannot fully control the future (…) [and]
there are not enough rules in the world adequate to navigate centuries of change and
crisis.” 89 Sunrise clauses personify the challenges of this inter-generational dialogue but
instead of deferring constitutional decisions to the future, they allow the framers to make
them.
86
See my previous work Sofia Ranchordás, Constitutional Sunsets and Experimental Legislation: A
Comparative Perspective (Cheltenham: Edward Elgar, 2014). Deciding on the constitutionality of transitory
law, the German Constitutional Court decided in 1976 that “laws that are indispensable for the legal capacity
and [normal] functioning of a state’ and the laws that are required for the concretization of fundamental rights
guarantees (e.g., media and broadcasting laws in that specific case) are not compatible with a temporary or
transitory nature. See 1 BvR 79/70 of 09.11.1976.
87
Catherine Dupré, Jiunn-rong Yeh, FN60 at 45.
88
For a thorough discussion of the value of temporary constitutions as a reality opposed to the traditional
perception that constitutions should be rigid and long-enduring, see Varol FN12 at 411 (“a durable constitution
is thought to constrain political majorities in moments of irrational fear or passion. A constitution represents a
powerful acknowledgement by a society of its own weaknesses and its ability to fall prey to pernicious
majoritarian impulses”).
89
Jack Balkin, Constitutional Redemption: Political Faith in an Unjust World (Cambridge: Harvard University
Press 2011) 9.
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Constitutional Sunrise
Sunrise clauses allow the constitution-making and amending process to be not only a
backward-looking effort in the sense of “claiming our constitutional inheritance” but also a
form of “making a constitutional donation” to “our posterity”.90 However, sunrise clauses
determine a priori the path to our posterity, by entrusting the constituent power with the
responsibility of predicting an effective date for certain constitutional changes as well
important contingencies that might consolidate the enforcement of a constitutional provision.
The added value of sunrise clauses when compared to constitutional amendments or
by-law clauses resides namely first in the fact that here the constituent power decides to
confer a constitutional character to such controversial topics and ensure that they are
included in the constitutional agenda. Second, instead of delegating further decisions on
these issues to the legislature using, for example, by-law clauses, the constituent power
decides and only delays the coming into effect of such dispositions to a moment when, for
example, all the necessary economic or political conditions will be verified.
Sunrise clauses remain a relatively overlooked instrument in the constitutional
practice. This book chapter has sought to fill this gap, opening the door to future research on
both sunrise clauses and contingency constitutionalism. This perspective on contingent
constitutional change complements the ‘one-way communication’ or monologue between the
past and future generations, and acknowledges a basic fact of life that has permeated most
fields of law: in long-term contracts, change is inevitable but the drafter might also want to
ensure that the validity of the contract is contingent upon it.
90
Akhil Amar FN5 at 477.
34 Electronic copy available at: https://ssrn.com/abstract=2814118