Conclusion
In modern constitutional democracies, unamendable provisions in constitutions can serve as guarantees for fundamental human rights and for the democracy against majorities in the parliaments.
To recognize their legal value and to say that they bind the parliaments leads us necessarily to the acceptance of a separation between a higher will than the will of the majorities in the parliament. The main quality of the higher will is to bind the legislative organ and limit it on the issue of constitutional amendments. The essential provisions of constitutions such as fundamental right and freedoms or the political regime on which the country is based upon are protected against probable violations from parliamentarian majorities. The organ which establishes the state and, therefore, has the right to determine its basis is called original pouvoir constituant and the other organ which can only amend those provisions open to amendments is called the derived pouvoir constituant.The amendment of an unamendable provision by a parliamentarian act would provoke inevitably a violation of this hierarchy because in this case the power to amend would mount up the constitution and this would mean getting out of the established legal order. Therefore, in my opinion, the organ which amends the unamendable provision of a constitution cannot be accepted as an in-law power. But despite of this fact, such a case should not provoke by itself a legal interruption.
The method of the amendment of the Constitution of 1958 of France in 1962 can be used as an example to the in-law original pouvoir constituant. In this case the amendment did not change unamendable article of the constitution.[1099] Instead, the process of referendum was used to achieve the amendment, and was afforded force following jurisprudence of the Constitutional Council of France which can be considered as a leading process for unamendable provisions’ amendments.
On the other hand, in contrast with this example, adding a new paragraph via a constitutional amendment to the unamendable article of the Basic Law of Germany in 1968 shall not be recognized as an act of the original pouvoir constituant.
Independent from the content of the relevant paragraph which should be accepted as an improvement for the protection of the democratic regime in Germany, this amendment was done by the ordinary process of a constitutional amendment and has no power to bind the future derived pouvoir constituants because it is not a product of the will of the founding power but of the majority of the regular parliament. This means that there is no hierarchical difference between that parliament and future parliaments which could have the ambition to change or annul this paragraph. But this doesn’t mean that Bundestag and Bundesrat have to change and annul it. Like the constitutional amendment in 1884 to the French Constitutional Laws of 1875, which added the so-called unamendable provisions for protection of the republican form of government and which has not been annulled since then and consequently becoming a real unamendable provision in the Constitution of 1946, paragraph 4 of Article 20 to the German Basic Law can survive without any amendment till it becomes a real unamendable provision if the future original pouvoir constituant which would draft a new constitution decides so. Until such a development, the 4th paragraph of Article 20 will stay as an amendable provision inside an unamendable article.