Dr. Essam Saeed Abdul Obeidi
Associate Professor of Public Law – College of Law – University of Sharjah – UAE

Abstract:

The research aims to clarify the role of the constitutional judiciary in monitoring constitutional amendments, especially the extent of this oversight and its ability to monitor the amendments in both formal and substantive terms. In addition to studying the obstacles facing the constitutional judge when exercising his supervisory role, especially in the constitutions of countries that try to prevent him from doing this either explicitly or implicitly. This research becomes increasingly important because it sheds light on the relationship between judicial oversight of constitutional amendments and the protection of the basic elements of a democratic constitutional system because this oversight strives to prevent the deviation of the amendment authority that may distribute the amendments in the interest of private rulers and not in the public interest. For this reason, this study raises many problems, most notably that the lack of weakness of this oversight undoubtedly helps to undermine the democratic system, and the excessive constitutional judge in exercising his oversight role is a strong manifestation of the government of judges, which may hinder constitutional reform in the country, which can cause many political, social and economic crises that harm the interest of the country.
The research presented the main topics of judicial oversight of the constitutional amendments through a plan consisting of two topics, the first topic relates to the justifications and controls of judicial oversight of the constitutional amendments, and the second topics relates to the exercise of judicial control over the constitutional amendments. By adopting a comparative critical analytical approach, the research shows the positive and negative aspects of this oversight role. The research has concluded with many results, the most prominent of which is that this oversight must be exercised carefully and cautiously and in accordance with a constitutional authorization that gives the judge the authority of previous and obligatory oversight of the constitutional amendments in both procedural and substantive terms. This study also recommended that the constitutional judge restrict himself when exercising this oversight by applying the presumption constitutionality in the interest of the amendment on the one hand and the application of the abandonment criterion so that the amendment is not judged unconstitutional unless the amendment annuls the basic principle or changes its essence on the other hand.

Keywords: judicial oversight, constitutional amendments, prohibition of amendment, deviation, basic structure doctrine.

Read Full PDF Text (Arabic)