Overview of the Rule on Constitutional Amendments
18.1.1 Definition: Distinction Between Constitution-Making, Constitutional Amendment and Transformation
The amendment power is by many considered to be the most significant clause in the entire constitution.
In the course of the French Revolution in 1789 the French statesman Abbe Sieyes had established the terms pouvoir constituent and pouvoir constitue} The first term describes the power of making a constitution whereas the second term depicts the amendment power. In general, constitution-making is a process of drawing up—often for the first time—an entirely new constitution or significantly re-writing a constitution.[1211] This new creation is based on the constituent power which is pre-constitutional and regularly rooted in revolutions or coups and therefore not bound by any conditions.[1212] In contrast, constitutional amendment is understood as a formal procedure in which the text of an already codified constitution is revised. The constitution itself empowers a certain body and prescribes theAn introductory video can be found on www.writingconstitutions.com and on https://doi.org/10. 1007/978-3-030-94602-9_1.
1 Sieyes (1789), chapt. 5.
2See forthcoming Volume III of Writing Constitutions.
3Klein and Sajo (2012), pp. 422-425; Wieser (2005), p. 86.
procedure and the conditions of a revision.[1213] Despite these two concepts exists no clear line between creation of a constitution and constitutional amendment. This difficulty is shown by the question of the legitimacy and the conditions of a total revision.[1214] Compared with constitutional amendments, constitutional transformations are non-formal processes of change driven by judicial interpretation.[1215]
18.1.2 Chances and Risks of Rigid and Flexible Constitutions
Rigid and flexible constitutions both entail challenges and opportunities for countries.
As will be outlined further below,[1216] a country may decide upon a more flexible concept in the outset, when the constitution still ought to be subject to further change[1217] and then tighten the rules on its amendment procedures. Generally, the function of rules on constitutional amendment is duplex: The constitution, as the highest-ranking legal source, marks the fundament of a democratic state and its political system and guidelines for actions of state authorities. Therefore, it is necessary to ensure its stability in order to avoid a crisis of a state and a political takeover by non-democratic parties. The rules on constitutional amendments guarantee this constitutional stability as well as legal predictability by constituting a certain formal procedure and requirements for constitutional change.[1218] These rules are generally higher and stricter than the conditions of ordinary legislation whereby they form a protective shield for the constitution. Thus, this provokes—in the sense of the popular sovereignty—the limitation of the power of the legislature, the protection of minority interests, the protection of individual rights, protection of the independence of certain institutions and increase democratic procedures and the legitimacy of the constitutional order.[1219] At the same time, social, economic or political changes as well as ill-conceived constitutional clauses or prior judicial interpretation may call for reforms. For this reason, the rules on constitutional amendments must not be too strict, otherwise they block necessary developments and lead to stagnation.[1220] The Indian Supreme Court had argued that ‘a static system of laws is the worst tyranny that a constitution can impose upon a country. An unamendable constitution means that all reform and progress are at a standstill’.[1221] A lack of flexibility is legally overcome and compensated by judicial interpretation of the constitution.[1222] This occurs usually in regard to provisions which can be invoked before courts such as human rights. But a violation of the separation of powers may occur,[1223] if the constitutional courts overstep the boundaries of justifiable and admissible further development of the law; such a constitutional change may lack of democratic process. This dichotomy shows that the fundamental challenge is to find a proper balance between rigidity and flexibility when drafting rules on constitutional amendments.[1224]18.1.3 The Rules on Constitutional Amendment: Overview of the Requirements
From a systematic point of view those rules on constitutional amendments which form a framework for democratic self-government[1225] are generally vested in the constitution itself. In fact, these rules are located either in a special section[1226] or within the section on ordinary legislation.[1227] The extent of the requirements for constitutional amendments goes hand in hand with the flexibility or the rigidity of a constitution. In generally, the less requirements the constitution provides, the more flexible the constitution is. Thus, the constitutional amendment rules determine the rate of constitutional amendment. Apart from this factor, other aspects such as age and length of a constitution, social and economic circumstances affect the rate as well.[1228] Generally, the requirements stated by a constitution can be divided into two types: (a) formal and (b) substantive requirements. Whereas the first type of requirements embodies procedural conditions such as the right of initiative and approval needs, the second type establishes material legal obstacles and limitations such as immutable sections. Even though the barriers for constitutional amendment
| 1. | Formal initation of constitutional amendment | 1 |
| 2. | Legislative advice | 1 |
| 3. | Legislative decision | 1 |
Fig. 18.1 Procedural considerations for amendment clauses
are higher than those regarding ordinary legislation, they are less complicated than those for constitution-making.
The clauses below present and recommend certain design options of requirements—formal and substantive—and deals with the involvement of the constitutional court, but do not propose, when and under which circumstances a constitution shall be changed.
18.2