ABSTRACT
The constitutionalism-democracy dilemma – the idea that constitutionalism and democracy are in tension (or in confl ict) with each other – has been the object of judicial treatment in several cases which, in one way or another, touched upon the very basis of the juridical orders in question. In North America, one of these cases is the Reference re Secession of Quebec , where the Supreme Court of Canada considered the question of the unilateral secession of its second most populous province. 1 In an attempt to balance democratic and constitutional principles, the Court held that the Canadian Constitution, which does not contain a provision allowing provinces to secede from Canada, could not be legitimately circumvented even if a majority of Québécois voted in favour of secession. According to the Court, the Canadian conception of democracy is not a mere system of majority rule but, taken in conjunction with other constitutional principles, involves the idea “that the political representatives of the people of a province have the capacity and the power to commit to be bound into the future by the constitutional rules being adopted”. 2
In this sense, far from negating democracy, constitutionalism creates an orderly framework that allows people to make political decisions: “Viewed correctly, constitutionalism and the rule of law are not in confl ict with democracy; rather, they are essential to it.” 3 One year later, the Supreme Court of Justice of Venezuela examined a similar issue. The case before the Supreme Court of Justice did not involve the secession of a political unit from a federation, but the creation of a new constitutional regime through a procedure not contemplated by the constitution’s amendment rule. The controversy originated when the then recently installed government called for a referendum that asked the Venezuelan electorate whether they wished to convene a constituent assembly in order to create a new juridical order. The amendment procedure of the 1961 Constitution, a typical liberal constitution, placed the amending power in the hands of the ordinary legislature.
