It is unconstitutional, by the old constitution standards', but the new regime can just ignore it and call it a day (we're talking about a fascist takeover here).
> paragraph 4 in the German constitution states: " All Germans shall have the right to resist any person seeking to abolish this constitutional order if no other remedy is available."
that's cute, but do you think it would change anything if Myanmar's constitution had included such clause? Do you think it would stop the military from shooting protestors?
Laws, and constitutions, are useful, but in the end: politics is about power, not laws.
You can't stop a bullet with a piece of paper. But what's written on the paper can persuade a would-be shooter that the cost of their actions is likely to outweigh the benefits - because it legitimises and encourages counter-actions and severe penalties.
The efficient way to maintain power is by controlling what people believe. It's a lot less effort and mess than trying to torture and murder everyone who opposes you.
This, exactly. I think constitutional guardrails are an effect, not a cause, of healthy democracies. If there is political will to do something bad the law can always be abrogated, edited, reinterpreted or circumvented. The existence of a loophole isn't surprising. The existence of a law without them would be.
(Same applies, mutatus mutandis, to smart contracts.)
Perhaps not, but Myanmar isn't full of Germans.
> Laws, and constitutions, are useful, but in the end: politics is about power, not laws.
The power to make people behave in a certain manner. Laws are quite effective at that.
In reality, changes in laws happen when a small group supports them and, small opposition notwithstanding, vast majority of people do not care. One of the easiest ways to make the majority care - and oppose you - is to push your changes in a way that violates existing legal framework, particularly important things like a constitution. As long as you don't do that - as long as you take things slow and don't raise people's alarms - you can boil the proverbial frog.
That's what these clauses are meant to protect from. A series moves, planned or accidental, that could turn the country into dictatorship.
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[0] - I.e. the kind that's valid as long as enough people believe enough other people believe it's valid. Like a constitution. Or money.
You cannot simply write down a law prohibiting becoming a dictatorship and then sit back thinking all will be fine, because then these groups will simply grow their power until they can ignore the bits of the law they don't like. And they don't need to change the law to gain power, they merely need acceptance of their telling of events.
On the other hand, without extensive support you cannot create a dictatorship because that word implies such extensive societal control that there simply must be extensive power behind it for it to function at all.
But my point was mainly around popular movements. Not going to comment on international judgement in these circumstances
The Third Republic had actually lasted quite a while. There was definitely a mess before that: monarchy, revolution that created a republic that turned into an empire, then a monarchy again, then a republic again, then the nephew of the original emperor being declared emperor... the 19th century was not a good time to be French. (And I'm leaving out some revolutions and constitutions that didn't go anywhere.)
But after that they really had settled down, until an outside force blew it all up. The 19th century wasn't really all that solid anywhere in Europe. Germany and Italy didn't do any better.
2. Alter articles 1 and 20
3. ???
4. 4th Reich
The logic is rather sound: The article already protects the principles of articles 1-20, not the articles themselves. So changing article 79 to remove the protections is already touching on these principles, and is therefore inadmissible.
More likely, the authors of entrenched clauses understood that, if it came to that, making that change illegal wouldn't prevent a slip to dictatorship. That impasse would only hinder the honest actors, if in the future there came a time when those entrenched clauses really legitimately need to be changed; and hence that door was deliberately left open.
Sure, if it came to that, judges may still rule your way to slow down the slide the dictatorship, but then the next constitutional amendment would be "all judges are retired, here's how new judges are selected". Or some other legal maneuver. Even the strongest clauses could be circumvented if they have enough support or power, let alone feeble interpretations of implicit clauses.
It could. But why explicitly write down things that are obvious anyway?
> More likely, the authors of entrenched clauses understood that, if it came to that, making that change illegal wouldn't prevent a slip to dictatorship. That impasse would only hinder the honest actors, if in the future there came a time when those entrenched clauses really legitimately need to be changed; and hence that door was deliberately left open.
No, the Basic Law was very much designed to make another slip into dictatorship impossible using legal means. The idea that the eternity clause was deliberately made toothless in case we actually do want to abolish human rights, democracy and rule of law again is frankly absurd.
> Sure, if it came to that, judges may still rule your way to slow down the slide the dictatorship, but then the next constitutional amendment would be "all judges are retired, here's how new judges are selected".
That constitutional amendment would simply be unconstitutional and thus invalid. Law is not code. If you violate its intent, you violate it.
Maybe it's obvious to you; to me it's obvious the other way. Perhaps, when penning their supposed bulwark against dictatorship, they could afford to spend a few more drops of ink?
If the authors of such entrenched clauses really meant it the way you imply, they are doubly idiots, first for thinking that such legal technicalities would help prevent the slide into dictatorships, and then for failing to even do that and leave a loophole. I don't think they are idiots and they realized such an attempt would be futile and counterproductive. And focused their efforts elsewhere, to build a proper system with checks and balances so power would not be concentrated.
> The idea that the eternity clause was deliberately made toothless in case we actually do want to abolish human rights, democracy and rule of law again is frankly absurd.
No dictator would bother with amending such toothless abstract parts anyway. They would simply claim they are the greatest champion of human rights, and that their abuses are actually not abuses at all. The parts that are worth changing are concrete, technical details; like how are the judges that decide whether those are abuses are appointed. And those parts that the dictator might want to modify, may also legitimately need to be modified in the future, so all constitutions leave the door open to that change, yes.
> That constitutional amendment would simply be unconstitutional and thus invalid. Law is not code. If you violate its intent, you violate it.
Of course the prospective dictator would violate the constitution's intent, that's the point. Newly appointed judges would disagree with you about the amendment's constitutionality, though. As would the populace, who would just see unelected judges violating letter of the law to stop the people's will and protect the status quo.
Law is not code, it's what people in power interpret it to be. If a person or group manages to concentrate the power in practice, no legal technicalities help. I live in a country that recently went through that change; all the human rights, freedom of speech, rule of law clauses are there, all the supposed ostensible checks and balances are there, none of it is of any help. You can think in your head that it's not actually constitutional all you like, it's just that the judges, prosecutors, army, police, the censored media and most of the populace would disagree.
> As would the populace, who would just see unelected judges violating letter of the law to stop the people's will and protect the status quo.
Nope. It would see the most trusted state organ protecting the Basic Law. Which I've capitalized not because I can't spell but because it culturally has a somewhat similar status to the US Constitution in the USA.
If constitutional assemblies worry about things like that, it's not as silly as you put it for Gödel to have wondered about not having such features in the US constitution at a time just after WW2.
[1] https://en.wikipedia.org/wiki/Entrenched_clause
Edit: Not a minor nitpick. Article 1 AND 20. Fixed!