Preamble

Legal effect

While preambles may be regarded as unimportant introductory matter, their words may have effects that may not have been foreseen by their drafters.

France

In France, the preamble to the constitution of the Fifth Republic of 1958 was considered ancillary and therefore non-binding until a major jurisprudential reversal by the Constitutional Council in the . This decision, which began with the words "Having regard to the constitution and its preamble," effected a considerable change in French constitutional law, as the preamble and the texts it referred to, the Declaration of the Rights of Man and of the Citizen of 1789 and the preamble to the constitution of the Fourth Republic, took their place alongside the constitution proper as texts understood as being invested with constitutional value. The Charter of the Environment of 2004 was later appended to the preamble, and the Constitutional Council identified three informal categories consisting of the fundamental principles recognized by the laws of the Republic, the , and the .

Canada

In Canada, the preamble to the Constitution Act, 1867 was cited by the Supreme Court of Canada in the Provincial Judges Reference, to increase guarantees to judicial independence.

Bosnia and Herzegovina

The Bosnian Constitutional Court, particularly citing the case law of the Supreme Court of Canada, also declared that the provisions of the preamble of the Bosnian Constitution are invested with a normative force thereby serving as a sound standard of judicial review for the Constitutional Court.

European Union

Due to concern over its potential effects, the draft preamble of the proposed European Constitution, in 2002, caused much controversy because of the possible inclusion of a reference to the Christian heritage of Europe.

Australia

Likewise, in Australia in 1999, a referendum on whether to adopt a new preamble was accompanied by a promise that the preamble, if adopted, could not be enforceable by the courts, as some were worried with how the preamble could be interpreted and applied.

India

The Preamble to the Constitution of the Republic of India is based on the Objectives Resolution, which was moved in the Constituent Assembly by Jawaharlal Nehru on 13 December 1946 accepted on 22 January 1947 and adopted by the Constituent Assembly on 26 November 1949, coming into force on 26 January 1950, celebrated as the Republic Day of India, and was initially drafted by Jawaharlal Nehru. In India, the Supreme Court frequently rules unconstitutional amendments which violate the Basic Structure of the Constitution, especially its Preamble.

References

References

1. Robert, Henry M.. (2011). "Robert's Rules of Order Newly Revised". Da Capo Press.
2. [[Decision 71-44 DC of 16 July 1971. Decision no. 71-44 DC]], known as "Liberté d'association" ("Freedom of association"): https://www.conseil-constitutionnel.fr/en/decision/1971/7144DC.htm
3. Constitutional Court of Bosnia and Herzegovina, U-5/98 (Partial Decision Part 3), para. 26, [[Sarajevo]], 1 July 2000.
4. Goldsworthy, Jeffrey. "The Preamble, Judicial Independence and Judicial Integrity." ''FORUM Constitutionnel'' (2000)
5. Leone, F.. (2019). "Prophet and Statesmen in Crafting Democracy in India: Political Leadership, Ideas, and Compromises". Lexington Books.