Introduction

When in 2009 the Swiss people decided to amend their Constitution in order to ban the construction of mosque minarets, the ban was sharply condemned.^[363] Critics argued that it was discriminatory and that it violated the freedom of religion as protected by the Swiss Constitution and the European Convention on Human Rights.^[364] Not everyone disliked the idea, however.

There were serious political calls for a similar ban in countries across Europe.^[365] Indeed, the steady rise of populism increasingly seems to generate proposals of constitutional amendment that sit uncomfortably with traditional approaches of constitutionalism. This development fuels the debate on the ability of constitutions to protect themselves against these kind of modifications. This debate is anything but new. It dates almost from the time that man started to contemplate a written constitution.^[366] The world’s second oldest constitution in existence, the 1814 Constitution of Norway, already featured a prohibition for the constitutional legislature to act against its ‘spirit and principles’.^[367] Elements of unamendability were, moreover, already to be found in US constitutional law.^[368] Since then, the idea has begun its march of victory throughout the world.^[369] Nowadays, many constitutional systems in the world are familiar with the so-called ‘supraconstitutional’ or ‘eternity clauses’ limiting the powers of constitutional amendment. These limits have recently gained attention.^[370] This should come as no surprise. The last decades have witnessed spectacular attempts to change constitutions worldwide and, moreover, an increased willingness on the part of the judiciary to review those attempts. As Roznai has eloquently shown, this development is rapidly turning into a global trend.^[371] Indeed, other contributions in this volume illustrate that unamendability is a key issue in many parts of the world.^[372] Perhaps the most enigmatic example featuring in contemporary scholarship, comes from India, where the judicial and legislative branches fought a heroic battle over the amendment powers of the latter in the 1960S-1980S.^[373] Equally appealing, though possibly not as controversial, is the South African Constitutional Court’s decision to declare the newly adopted Constitution for post-apartheid South Africa unconstitutional.^[374] The more recent examples come from the European continent, where several constitutional courts have been confronted with bold and potentially far-reaching constitutional change.

Some of them, such as the Turkish and the Czech Constitutional Courts, have risen to the challenge, others—like the Hungarian—have acted more carefully, but it is clear that the issue of unamendability and the judicial enforcement thereof is firmly on the European agenda.^[375] Surely the same goes for Latin America where the courts have been struggling with roughly the same dilemma.^[376]

Constitutional unamendability, in short, seems to be the trend globally. The concept seems to be somewhat out of place, however, in countries, such as the United Kingdom and the Netherlands, where judicial review of legislation is traditionally less common. In 2010, for instance, a prominent Dutch lawyer and cabinet minister argued that there was nothing in the Dutch Constitution preventing a majority from introducing Sharia Law, as long as the correct procedure of amendment were to be followed.^[377] Although his remarks sparked a general outcry, legal scholarship, in a rare moment of unanimity, tended to agree.^[378] In short, there seem to be important exceptions to the growing global trend of courts curbing the powers of constitutional amendment. To some extent, these exceptions might be explained by the fact that the constitutional structures in most western European democracies are relatively deeply rooted. Constitutional change is seldom of a controversial nature. But rooted or not, the Swiss example mentioned illustrates that this might change. Should we, in such a case, assume that constitutions without unamendability clauses or judicial doctrines of unamendability are irrevocably flawed? Or may there still be hope?

We argue here that there is. Although there exists a distinct category of constitutions that, by virtue of their cultural and historical roots, falls well outside the scope of the existing doctrine of constitutional unamendability, even these may still include mechanisms that have much in common with what is traditionally understood as constitutional unamendability.

This kind of unamendability is, however, of an extremely informal nature. Instead of explicitly prohibiting or disabling legislatures to formally amend the Constitution, the system simply renders amendments, that have already been brought into force, practically ineffective. We call this covert unamendability.^[379] ^{^[380] The agents of this kind of unamendability mechanism are primarily the courts. But contrary to ‘regular’ types of unamendability that have been identified thus far, they do not necessarily declare amendments unconstitutional or void. Instead, they simply ignore the amendment or find alternative ways of maintaining the old status quo. They apply, what we might call, judicial disobedience, or rather a convenient form of judicial deafness.'¹' However, because of its extremely informal nature, this kind of unamendability is not as tough, or subject to the same rules, as regular forms of unamendability. It lacks a clear rule, codified or not, that a particular constitutional concept may not be affected. Instead, this kind of unamendability rather takes the shape of a convention, which perhaps makes it a somewhat more intangible concept, but at the same time renders it particularly useful to politically enforced constitutions where a system of strong-form judicial review of legislation is absent. In this chapter, we try to illuminate the concept of covert unamendability. We do this by first establishing its place among the different forms of unamendability. To this end, we develop the distinction between, what we tentatively refer to as ‘politically’ and ‘judicially enforced constitutions’. In our view, the scholarly understanding of constitutional unamendability has so far been very much influenced by judicially enforced constitutions. We then proceed by sketching some potential moments of covert unamendability in two largely politically enforced constitutions: the United Kingdom and the Netherlands. The choice for these two systems is motivated by the fact that they typically represent rooted liberal democracies where the constitution is largely considered a political project and in which there is an established tradition of judicial reluctance to interfere with the legislative domain.
Moreover, both jurisdictions lack a written constitutional provision declaring parts of the constitution unamendable. We then conclude with some thoughts on the nature and limits of this covert type of unamendability. To that end, we elucidate on the concept of the constitutional convention. However, it should be noted at the outset that we use this concept only as a model to explain the typical features of the type of unamendability we identified. This unamendability itself concerns rules and not conventions. Hence, we speak of conventions of unamendability, not of unamendable conventions. Moreover, our inquiry is not normative. For a normative assessment of the concept of unamendability in general, we refer to the contributions of Roznai, Michel and Cofone, and Pilpilidis in this volume.^[381] 2}

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Source: Albert Richard, Oder Bertil E.. An Unamendable Constitution? Unamendability in Constitutional Democracies. Springer International Publishing,2018. — 389 p.. 2018

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