Remarks
As mentioned in the outset, when drafting rules on constitutional amendments the challenge is to find the right balance between flexibility and rigidity. However, a perfect model of rules on constitutional amendment does not exist.
The design of those rules and the balance between flexibility and rigidity depends on the individual state, its political and social situation, its legal culture and tradition, history and constitutional development. Another aspect is, inter alia, the length and the level of detail of the constitution. Therefore, a guiding formula in this context is: If a constitution is limited to basic and essential regulations, then the alterability should not be easy. To put it another way: If the constitution is more detailed, it ought to install a higher level of flexibility. In essence, there is a correlation between extent of the provisions and level of flexibility.[1301] At the same time it is necessary to take the legal quality of the constitution into account. If the constitution is not only a political declaration, but also a legally binding and enforceable document, it will have a greater impact and significance. In this case, higher barriers to change are required.Many different possible combinations with regard to the design of the procedural requirements exist. The more possible paths are defined, the more confusing and complicated the procedure becomes. This should be prevented with the preference of legal clarity. Therefore, the rules of procedure should be simple, clear, and transparent and have a high degree of certainty. For this reason, the procedure should be entrusted only to Parliament as the legislator. It is advisable to establish a certain majority; the concrete quorum depends, among other things, on the electoral system. In addition, a time delay should be installed to allow debating and ensure high quality.
Civil society should also be allowed to participate in these debates. It is therefore necessary to guarantee freedom of information, expression and assembly.[1302]Referendums should remain the exception. They should only be considered if there are no other security mechanism.[1303]
The creation of immutable constitutional law should also be applied with caution. Eternal clauses must be clearly defined on the basis of legal certainty, but must also allow interpretation to a certain degree in order to enable necessary dogmatic developments in the future. Such developments can be initiated particularly in an international context. Nor should fundamental rights be unchangeable up to a certain level in order not to hinder improvements in the level of protection. Strictly speaking, only the restriction and abolition of a minimum standard of fundamental rights and their core substance should be inadmissible. Fundamental rights are often further developed through interpretation by constitutional courts, provided that fundamental rights are enforceable.[1304]
A judicial review of constitutional amendments is generally recommended. Nevertheless, the constitutional legislator should be provided with sufficient margin of discretion. How fundamental rights could be worded in a constitution and what constitutional principles govern it will be discussed in detail in Volume II and III of Writing Constitutions.