Details of the Clause: Structural Approach and Guiding Questions

18.2.1 Formal Requirements

Although formal and procedural requirements vary widely, typical elements and mechanisms such as initiation by a certain organ, a qualified majority, approval by another organ or referendum, time delays or multiple readings are common.^[1229] Most of the constitutions prescribe a uniform procedure for all instances of constitutional amendments.

These formal and procedural provisions impart a special legitimacy to the amend­ment and ensure transparency formally compliant with the rule of law.^[1232] Anyhow, they most certainly cannot prevent the abolition, change or new creation of a constitution carried out by revolution.

When drafting formal and procedural rules on constitutional amendment, various questions need to be answered, as shown in Fig. 18.2.

Fig.

18.2.1.1 Organs and Majorities Required to Initiate the Amendment

In almost every state Parliament has the competence to initiate an amendment procedure, whereby the necessary threshold differs. This is reasonable as the Parlia­ment embodies the main legislator. In general, not only the organ which has the competence for constitution-making (pouvoir constituant) has the right to initiate an amendment, because the reducing to this competence would be too cumbersome for an effective regime on constitutional amendment. See Table 18.1.

In some countries other bodies have also the right to initiate an amendment. This is not unproblematic, when the Head of State, the Government or local authorities— as a part of the executive power—have this power, because it could breach the doctrine of separation of power. The same applies to the right of the constitutional court. Even though only the right to initiation will not necessarily carry out the final amendment, it opens the door to a risk of misuse; especially when the Head of State initiates an amendment in his/her favour. But it may be necessary to open up another avenue and to give the right to these organs. This is the case, when the Parliament has to exceed a certain (high) threshold, because otherwise there are not enough ways to start a necessary amendment process. However, the bodies of the executive power should not have the right to initiate amendments which effects their power directly or indirectly.

The initiation by citizens via referendum is also fraught with problems especially in terms of legitimation even though it seems to be an expression of popular sovereignty.^[1233] In this context questions arise namely such as “how many people have to support the initiation in order to have a sufficient basis of legitimacy?”, “have the people the expertise to deal with an amendment properly and to oversee its aftermaths?” or “who formulates the amendment?”.^[1234] At least most of the constitutions demand a certain minimum number of supporters for submitting an amendment proposal in order to guarantee a basic legitimation: e.g.

Table 18.1 | Organs and thresholds to initiate an amendment

Table 18.1 (continued)

30.000, Serbia^[1236] 150.000 or Romania^[1237] 500.000.

With regard to the mentioned problems, it is generally recommended to limit the right of initiation, apart from the considerations outlined with respect to popular referendums in chapter 18, to the Parliament. A certain threshold should not be installed in order ensure the possibility of the initiation of necessary modifications.

18.2.1.2 What Organs and Majorities Are Required to Adopt the Amendment?

Table 18.2 sets out requirements for adopting the amendments.

Most of the countries require a qualified majority in Parliament for the adoption of constitutional amendments. The respective threshold varies widely. The particular design of the voting requirements depends on whether a unicameral or bicameral system is installed. However, the required qualified majority reflects the importance of the constitution as the highest-ranking legal source. Moreover, the required majority which is higher than the majority of ordinary legislation protects the constitution and establishes constitutional stability. Just a few countries require only an ordinary majority. But this low majority is usually supplemented by other protective mechanisms and requirements such as a referendum (Denmark, Ireland^[1238]) or approval in the next legislative period (Iceland). Some constitutions require an additional assent by the Head of State which is advisable as long as this assent has the form of a formal requirement.

Some constitutions state additional requirements and procedural steps for adop­tion. Such a procedural requirement is the intervening election. This kind of proce­dure requires the consent form the Parliament which propose the amendment and the Parliament after the following elections. The consent of two parliaments is on the one hand a very effective protective mechanism and creates stability. But on the other hand, it could delay urgent amendments and therefore inhibit necessary social and political developments.

Table 18.2 | Passing the amendment

Table 18.2 (continued)

are highly sensible such as human rights or principles of democracy. For example, the Russian constitution indicates that a change of higher-ranking constitutional provisions (e.g. individual rights and freedoms, popular sovereignty)—which has been initiated by 3/5 of the members of both houses—has to be approved by a 2/3 majority of the convened constitutional assembly.^[1239] A similar procedure contains the Bulgarian constitution, whereby 2/3 of the members the Parliament has to vote for the convening of the so-called Grand National Assembly. This body can adopt the amendment of the higher-ranking regulations with a 2/3 majority. The Spanish constitution demands a 2/3 majority of both chambers and the same majority of a new elected parliament, in order to change individual rights and freedoms or to carry out a total revision.

18.2.1.3 Electoral System

It is recommended to form higher obstacles for the adoption of constitutional amendments than the ordinary legislation requests. It may be advisable to install these additional requirements within the parliamentary approval in the form of a qualified majority. But what certain majority is reasonable, depends very much on the constitutional development (below) and on electoral system of a country.^[1240] For example, in election systems with a low threshold and proportional representation there are usually a large number of parties; so in this case it may be difficult to reach a 2/3 majority. In comparison, in a two-party system or in systems with single constituencies and first-past-the-post, the ruling party has usually no problems to attain a qualified majority.^[1241] Another example is the difference of uni- and bicameral parliamentary systems. If the two houses in a bicameral parliamentary system are elected and composed by different criteria, then a wide political consensus is necessary to achieve even an ordinary majority in both chambers.^[1242]

18.2.1.4 Constitutional Development

Importantly, a country undergoes constitutional developments in its history. As example may serve the countries of Eastern Europe and the former Soviet Union many of which embarked on a constitutional development from 1989 onwards, often from a presidential or semi-presidential system to a parliamentarian system.^[1243] In that context constitutional amendments should be made easier until a constitution has advanced.^[1244] Whilst a constitution arguably never reaches its final form^[1245] it may have arrived at a concept that a society feels comfortable with.^[1246]

18.2.1.5 Constitutional Referendum and Alternatives

After all, the Parliament is the primary legislator and therefore has the predominant responsibility for legal changes such as constitutional amendments. Other protective mechanisms—such as referendum—as a compensation of an ordinary majority are also possible but have the drawback that the process of constitutional amendment is made unnecessarily difficult and that they produce additional costs. Australia, e.g. which requires a member majority in both houses and a referendum which needs majority approval nationwide and in all of the Australian states is one of the hardest constitutions to change.^[1247] Only 8 out of 44 attempts to change the constitution were successful. Australian Governments shy away from necessary amendments and the last amendment dates back to 1977.^[1248] Supplementary obstacles—such as special procedures—for sensible and fundamental sections are reasonable; this strictness has the effect of almost unmutableness. Furthermore, there is no reason of not recommending alternative ways of adopting an amendment as long as different ways are transparent and have the same standard of constitutional protection. For instance, the French constitution gives two alternative techniques of amendment: 1. The Premier Minister can propose an amendment, which has to be approved by a 2/3 majority of both chambers and by a referendum. 2. If the President initiate an amendment, a 3/5 majority of the Parliament which has then the form of a constitu­tional congress is required. In this case a referendum is not necessary.^[1249]

Constitutional referendums are of course also darlings of populist leaders, author­itarian democracies or authoritarian systems in general. Constitutional change is then driving primarily by the leader’s administration and popularly endorsed. “The plebiscite was Lukashenko’s preferred method to legitimize constitutional change” for Belarus in the early twenty-first century.^[1250] In the Ukraine Kuchma pushed for the adoption of constitutional changes by popular vote in 2000 by means of a referen­dum, but the Constitutional Court did not allow this question to proceed as it violated the Ukrainian constitution.^[1251]

18.2.1.6 Timeframe for the Legislative Advice and Adoption

In most jurisdictions the timeframe in which the adoption process has to occur plays an important factor, see Table 18.3.

The different types of timeframes for the legislative advice and adoption are temporal mechanisms of constitutional protection.^[1252] These features have in common that they intend to avoid precipitate and ill-conceived amendments, so they obtain a high legal quality. The bodies in charge should have enough time to (re-)consider about the changes, provide time for public debate and draw their attention to its consequences, in order to prevent rapid misuse. Even though these intentions are reasonable, these elements may delay urgent needed modifications, when the

Table 18.3 | | Timeframe for legislative advice and adoption of an amendment clause

timeframe is too wide; this can lead to stagnation.^[1253] Thus, it is recommended to install a timeframe (e.g. multiple readings), which is just a little bit wider than the timeframe concerning the ordinary legislation.

When a constitution determines a wider time slot, another way to inhibit unnec­essary delays can be to wider allow exceptions for urgent matters. For example, in Estonia and Finland an amendment can be adopted within the same legislative period, when the Parliament (4/5 majority in Estonia,^[1254] 5/6 in Finland^[1255]) declares the urgency of the matter. This technique has the disadvantage that urgency is an undefined legal concept and therefore can provoke legal uncertainty, however it provides Parliament with a welcome alternative.

It is highly recommended that certain constitutional amendments only become effective later. This applies in particular to changes in the power structure and powers of officials such as the President or Prime Minister. Changes in this regard are intended to improve governance rather than serve personal interests. Using the South Korean constitution as an example, it should therefore be determined that the extension of the term of a President or their re-election will only apply to their successor.^[1256] This rule would render the prolongation of a current leader as seen in Turkey, China, Russia or elsewhere impossible.

18.2.1.7 Approval by (Mandatory/Optional) Referendum

Table 18.4 sets out the constitutions which require an adoption by referendum.

In order to prevent delays, several constitutions prescribe a time limit for holding the referendum after an amendment was passed by Parliament. These time windows vary from three^[1257] or six^[1258] months, to fifteen,^[1259] thirty,^[1260] sixty,^[1261] ninety^[1262] days. Most countries demand a majority which usually exceeds 50% of the votes cast.^[1263] The constitution of Montenegro^[1264] requires even a majority of 3/5 for certain amendments. Some constitutions request a minimum participation of the electorate in the referendum. In general, it is required that at least half of the electorate render their vote.^[1265] In contrast, the Danish constitution asks for the participation of 40% of

Table 18.4 | | Approval by referendum

the eligible voters.^[1266] Australia requires majority approval nationwide and in all Australian states.^[1267]

A referendum is an expression of the integration of the people in the process of changing the fundament of the state and therefore the most important legal source. Prima facie, this idea seems to be right minded with respect to the concept of popular sovereignty. But, as mentioned above, this involvement contains problematic aspects such as legitimation, separation of power, proper organisation and costs.^[1268] Furthermore, a referendum can be misused by the initiative-entitled executive in

Table 18.5 | | Implementation of the amendments

order to circumvent parliamentary amendment procedures.^[1269] This is the reason why it is generally advisable to waive an approval by mandatory referendum. Nonethe­less, a referendum is sensible, if important provisions such as individual rights and freedoms or the form of Government are subjects to change or a total revision shall take place. The principle of freedom and democracy as well as the popular sover­eignty request the consent of the people, if the amendment effects the authority of the people, their rights and freedoms. These provisions precisely protect the people from actions of the state authority. Because of this protective function, these rights must be not changeable by the state authority only. However, the constitution has to define very clearly in which cases a referendum has to occur as well as the procedure and requirements for its adoption.

18.2.1.8 Method of the Textual Revision

Table 18.5 sets out how the amendments are implemented.

As the mentioned definition of constitutional amendment indicates, the text of the constitution itself should be changed. Nevertheless, a lot of constitution do not determine expressis verbis a certain method of textual revision. Thus, some consti­tution can be changed without changing the wording of the affected provision. In fact, the US constitution provides that the text of the amendment is added to the existing constitution. Neither the amendment nor the changed provision gives note about the modification carried out. This method is confusing. To open the choice to change the affected text of the constitution or to change by an additional (ordinary) act which stands next to the constitution is similar unwieldy.^[1270] Hence, it is reason­able to expressly state that the wording of the affected provision has to be changed explicitly. This ensures legal clarity.^[1271] Such a condition contains the German constitution as a reaction of the Weimarer constitution from 1919. The Weimarer constitution allowed constitutional amendments without modification of the consti­tutional text.^[1272] Thus, the constitution could have been changed within ordinary acts. This loophole was misused by the Nazis. They changed the constitution in their favour without touching the constitutional document itself, of the continued validity of the unchanged Weimarer Constitution appeared to be upheld.

18.2.2 Substantive Requirements

Almost every constitution includes substantive requirements which have to be fulfilled in order to change the constitution. In fact, those requirements have often assumed the form of a proscription or a restriction of change of fundamental provisions. Generally, they are laid down expressly in the constitution within the framework on constitutional amendments. Some constitutions provide only uncer­tain limitation of change^[1273] or no written limits^[1274] at all. However, as mentioned before, those limitations cannot prevent undemocratical changes of immutable provisions by coups or revolutions, designed to install a totalitarian regime. Insofar, this protective shield is relative. In other words, this protective function only works, if everyone respects those limits.

When drafting formal and procedural rules on constitutional amendment, various questions need to be answered, see Fig. 18.3.

18.2.2.1 Which Sections of a Constitution Are Immutable?

Some jurisdictions do not permit that certain sections of a constitution can be changed at all. Table 18.6 points out some examples.

Most constitutions contain a so-called “eternity clause“. Such a clause points out which provisions of a constitution cannot be subject of amendments.^[1275] In general,

Fig. 18.3 Limits of constitutional amendments

subject of this clause are sections of high importance which embed fundamental decisions and principles such as principle of democracy, rule of law, popular sovereignty, form of government, indivisibility of the state territory or human rights. Which certain sections are declared as immutable often depends on the historical background of a country. For example, because of the cruel experiences of the Nazi regime, the Basic Law of Germany lays down that the guarantee and the respect of human dignity as the most important legal norms is eternal.

A lot of constitutions restrict the changeability of not only one, but several fundamental provisions. Others are limited to one or two essential constitutional statements. For instance, the French and Italian constitutions only enshrined the immutability of the form of Government as republican. This shows the importance of the system of Government for these countries which is based on the historical experience with monarchy-led government. Nevertheless, such flexible constitutions exhibit sometimes an indirect protection of other fundamental norms. The prominent provisions which set up the indivisibility of the territory of France^[1276] or Spain^[1277] can be understood in this way for example.^[1278] Generally speaking, territorial integrity and indivisibility of a country as well as the spatial structure such as federalism^[1279] and local self-government^[1280] are also important aspects which are often immutable.

From a normative technical viewpoint, the constitutions indicate which sections are subject of limits either by a catalogue^[1281] or by general reference to the concerned principles and provisions.^[1282] Some countries even recognise an uncodified unamendability.^[1283] In fact, there is a wide variety of detailing and generalization of the constitutional specification on immutability. A very detailed list bears the risk of a too high rigidity, because such lists often have the tendency to include to many—

Table 18.6 | | Immutable sections of a constitution

Table 18.6 (continued)

even non fundamental—constitutional rules. Moreover, this undermines the special significance of essential sections. On the other hand, a restriction clause which states in a general manner that fundamental principles are immutable without defining the fundamental principles creates legal uncertainty. This uncertainty might weaken the purpose of those limitations—namely the function as a protective shield—because uncertain provisions open the door for adverse interpretation. Furthermore, it could arise the risk that the discussion about the interpretation and the norm itself will overshadow the to be solved social or economic issues which are related to the planned amendment. In fact, this could lead to stagnation. The vaguer the limitations clause is drafted, the higher the risk of uncertainty, instability and stagnation. An example of a very imprecise limitation clause contains the constitution of Norway: art. 121 says “[...] an amendment must never be contrary to the principles of this constitution, but only concern modifications to individual provisions which do not change the spirit of this constitution”. References to the principles and to the spirit of the constitution can mean everything or nothing. Even though such vague clauses can be concretised by judicial interpretation, this leads to an increase the power of the third branch, which in turn may contradict democratic principles.^[1284] Constitu­tional courts are guardians of the constitution, but they must not become the pouvoir constituant by constitutional interpretation.

The challenge again lies in determining the balance between rigidity and flexibil­ity in terms of defining the decent extant of sections which are immutable in a sufficiently concrete way. Generally speaking, only the fundamental principles and provisions should not be changeable, whether less important norms should not be cemented; the rules on amendment shall not be overloaded with text and lost in detail. This formula leads to the hard question, which principles and provisions are fundamental, and which are not? To find a universal answer is almost impossible, because, as mentioned, every country may have own historical influenced views on this question. However, there exit at least a few universal principles which can be graded as fundamental values because they are the pillars of the constitutionalism itself. Provisions which guarantee a liberal-democratic state which is based on the rule of law can be counted as such. Therefore, civil freedoms and human rights as the embedded legal positions of the people belong to those provisions as well as the democratic principles and the rule of law.^[1285] In addition to that, all instruments which reflect the principle of checks and balances such as the separation of power and parliamentary control of the executive power.^[1286] Amending these rules and principles would mean the abolition of constitutionalism. Moreover, it is recommended to take the immutability of the territory into account, because territo­rial integrity frames the basic substance and therefore minimum requirement of a state. Compared to mentioned principles, a national flag, an official language or adherence to a certain religion seem not fundamental.

However, it is not imperative to create only a final catalogue of unalterable constitutional provisions. Despite the above-mentioned dangers, which are accompanied by uncertain clauses and judicial power of interpretation, it is advisable to create an additional general clause which relates to fundamental decisions of the constitution and opens—to a certain extant—room for interpretation. Nevertheless, such a general clause must be sufficient determinable. This ensures sufficient protection of constitutional provisions and principles which are not laid down explicitly or which could be regarded as fundamental in the future through (dog­matic) development. The past shows that the understanding of the constitutional concepts is dynamic and can change over the time: For example, the nineteenth and twentieth century had a different understanding of “democracy” and “democratic principles”.^[1287] Especially the development of the bill of rights should not be interrupted by a limit of change. Therefore, only there should not be restriction, when an amendment increases the effectiveness of the fundamental rights.^[1288]

Some of the constitutions do not contain explicit substantive change restrictions; they may be fully amended and subject to a total revision. In general, such complete amendments usually have to overcome the high procedural hurdles mentioned above which are roughly equivalent to the adoption of a new constitution (see Sect. 18.2.1.2). Nevertheless, enabling total revisions cannot be recommended as it does not provide sufficient protection for democratic-liberal constitution which guarantees the rule of law and human rights. Some attempts are therefore being made by the scholarship to create unwritten material barriers by interpretation.^[1289] However, this also harbours the risk of legal uncertainty and constitutional discontinuity.^[1290]

18.2.2.2 Amendment of the Rules on Constitutional Amendments

Most of constitutions examined do not contain an explicit statement as to whether the eternity clause itself or the rules on amendments in general can be changed. The definition of unchangeable constitutional law only makes sense if the substantive restrictions on constitutional amendments are themselves unchangeable. The immu­tability thus follows by interpretation with regard to the meaning and purpose of the eternity clause.^[1291]

A more difficult question is whether the procedural rules on constitutional amendments can be changed. An argument against this is that the legislature should not be empowered to free itself from constitutional barriers.^[1292] This applies in particular to the amendment of qualified majorities. Otherwise, the protection of the constitution would be phased out. Overall, it is advisable to expressly state that neither the formal nor the substantive requirements on constitutional amendments can be changed.^[1293]

18.2.2.3 Moratorium

At certain times it may not be permitted to enact constitutional amendments. These are set out in the following Table 18.7.

Several constitutions contain temporal limits. These time limits stipulate that under certain circumstances (any) constitutional changes are inadmissible at a certain time. The best-known time restriction concerns the state of emergency. This means that no constitutional changes may be made in times state of emergency, war or a state of siege. Such a restriction ensures that, in times of unstable and difficult conditions, there is at least constitutional continuity in order to give stability to the country. Moreover, unstable times are also susceptible to ill-thought-out or undem­ocratic constitutional changes. This should also be prevented. Therefore, such a restriction appears to be advisable. However, it is a prerequisite that the determina­tion of whether an emergency exists is subject to special conditions,^[1294] so that necessary constitutional changes cannot be hindered by this.

Other constitutions impose blocking periods or time limits which prohibit a second partial revision or a new amendment of an already amended constitutional

Table 18.7 | Moratoriums of constitutional amendments

^a Art. 203 (4) Constitution of Serbia 2006

provision during a certain period of time or within the same legislative period. As long as such time limits do not state exemptions, these kinds of limits are not recommended. They make it difficult or impede the rapid adaptability of constitutions and the reversal of ill-conceived constitutional amendments.

18.2.3 Involvement of the Constitutional Court

Several jurisdictions foresee the involvement of the constitutional court during the amendment process, see Table 18.8.

Some constitutions provide for the Constitutional Court's involvement in consti­tutional amendments. In some cases, the participation should take place before the constitutional amendment is implemented; in others, the Constitutional Court acts as a supervisory body. Both variants have advantages and disadvantages.

Judicial participation as a precondition means that the constitutional changes are checked ex-ante by the judicial authorities which is often practiced in francophone countries. This ensures the procedure, the quality and constitutionality of the amend­ment. It can also help to prevent disputes. However, the involvement in advance is not necessarily a violation of the separation of power. The involvement of the third branch in the legislative process is a pre-emptive check (similar to one exercised by a

Table 18.8 | | Involvement of the constitutional court in the amendment process

presidential veto in case the President deems that the constitution is violated), which is justified by the significance and impact of constitutional amendments. Such a participation can therefore be considered. But it should be noted that an ex-ante review cuts the rights of Parliament which can lead to a high level of rigidity.

Some constitutions have installed a subsequent involvement of the court in reviewing constitutional amendments. This is due to the competence of verifying the constitutionality of laws;^[1295] amendments to the constitution are generally adopted as—higher-ranking—laws. This type of involvement is more aligned to the court's role as a judicial body. In principle, the court does not take action until it is called upon to do so. The court then examines whether the constitutional amendments implemented meet the formal and/or substantive requirements of the constitution. In some cases, not only the explicit limits are used as a benchmark for the examination, but also the constitution as a whole and its basic structure.^[1296] In addition, there are also limitations with regard to international law: for example, the Swiss constitution stipulates that amendments must not violate mandatory international law.^[1297] If a constitutional amendment does not meet the constitutional requirements, the court can declare the amendment unconstitutional and thus invalid. For instance, the Indian Supreme Court declared void the constitutional amendment infringing prop­erty rights.^[1298]

The ex-post judicial review of laws corresponds to the concept of constitutional­ism and check and balance. Since constitutional amendments are implemented in the form of laws, they must also be verifiable by the judiciary. Otherwise, the limits of change could not be enforced and would therefore have lower value. However, this gives the courts a lot of power. In this way, only a few judges could overturn a constitutional amendment that has been confirmed by a referendum and therefore possesses particular legitimacy.^[1299] Nonetheless, such special legitimate amendments may also be unconstitutional, which is why they must also be justiciable. Jurispru­dence is the most qualified body for such a review.^[1300] It is therefore necessary to install a judicial review. However, in order not to fully restrict the (political) margin of discretion of the constitutional legislator, the power of review of the court must be explicitly and clearly defined. Specifically, the court should be able to monitor compliance with formal requirements—in particular with the procedure—and infringement of an eternity clause and other substantive requirement when called upon to do so by other state bodies. If the court finds that the amendment is unconstitutional, it must be able to annul the amendment.

18.3