The Different Forms of Constitutional Unamendability

Before we move on to the usefulness of unamendability doctrine for politically enforced constitutions, let us first clarify our understanding of two central concepts: constitutional unamendability and politically—as opposed to judicially—enforced constitutions.

The next question would be what is to be understood by constitutional ‘change’. There are several ways of changing both the meaning and the practical effects of the constitution. In a book on the subject, Melissa Schwartzberg distinguishes statutory and interpretative change, constitutional amendment and revolution.^[385] Again, unamendability doctrine usually discusses the (im)possibilities of inserting textual changes to the written Constitution.

Constitution (in a narrow sense) or a statute with constitutional significance or status. In the British context, this would apply, for instance, to the Human Rights Act 1998, the European Communities Act 1972, the Constitutional Reform Act 2005 or the Scotland Act 1998, to name but a few.^[386] Furthermore, the kind of amendment we envisage does not transcend the boundary between amendment and total revision discussed elsewhere in this volume.^[387]

Constitutional unamendability comes in several forms.^[388] We should, therefore, be clear about the type of unamendability we discuss in the present context. Comparative law regularly distinguishes between both procedural and substantive unamendability, and between formal and informal unamendability.^[389] Procedural unamendability concerns the situation in which the constitution allows for amendments but forces the constitutional legislature to follow a more or less complicated procedure. Procedural requirements can sometimes render the amendment of the constitution extremely difficult if not practically impossible.^[390] Formal procedural unamendability flows directly from a procedural restriction that is codified in a constitutional text. Informal procedural unamendability, on the other hand, results from the political process.^[391] It develops where the procedural threshold required by a formal amendment rule is so high that political actors cannot realistically (even if they could theoretically) meet the amendment requirements.^[392] Although the Dutch Constitution, for instance, does not formally prohibit relinquishment of the principle of bicameralism, the recurring debate in the Netherlands about abolishing the First Chamber of Parliament illustrates that in practice it is presently unimaginable to achieve the necessary political consensus needed for amendment.^[393] This is exactly what Albert recently coined ‘constructive unamendability’.^[394] It would be tempting to apply this concept to the two politically enforced constitutions we discuss here but we resist that temptation.

Our main focus here is on the substantive branch of unamendability. This branch concerns the subject matter of constitutional amendments. Like its procedural sister, substantive unamendability comes in a formal and an informal version. Formal substantive limitations on the powers of constitutional amendment usually operate in the form of explicit clauses (so-called ‘Ewigheitsklauseln’ or ‘eternity clauses’) in a written constitution. Perhaps the most notable example, at least on the European continent, is article 79(3) of the German Basic Law, declaring unlawful, the amendment of a number of provisions in the Basic Law, for instance, with respect to the republican form of the state, its federal structure, the separation of powers and the protection of human dignity. In a similar vein, the Swiss may amend their constitution freely, but not as far as these amendments might contradict mandatory rules of international law.^[395] And the Norwegian legislature should do as it pleases as long as its fruits are in line with ‘the spirit’ and ‘the principles embodied in the Constitution’.^[396] However, neither the flexible and uncodified constitution of the UK, nor the written Constitution of the Netherlands include such a provision. This is not to say that this would be conceptually impossible for a politically enforced constitution. True, both formal procedural and substantive unamendability clauses are more often than not enforced by constitutional courts.^[397] However, the Norwegian example illustrates that there are systems in which it is assumed that the enforcement is primarily a matter for the political actors.^[398] Enforcement is then largely a matter of political reality.^[399] Having said that, it is submitted that most European ‘eternity clauses’ are, in any case, coupled with constitutional courts reviewing constitutional amendments.^[400] As we will see, no such constitutional court exists in politically enforced constitutions, nor do ordinary courts fill this gap.

The story of constitutional unamendability does not end though, with these so-called Ewigheitsklauseln. A number of jurisdictions operate informal substantive limits to the amendment power. In these cases, the constitutional text does not, as such, include any explicit provision legitimizing review—whether political or judicial—of constitutional amendments. And yet, there are several jurisdictions where particularly the courts have found unwritten limits to the amendment power, based on the so-called ‘inner logic’ of the constitution.^[401] Thus, in a spectacular move, the Indian Supreme Court in a series of cases, ranging from the 1960s into the 1980s, established ultimately that the power to amend the Indian Constitution ‘does not include the power to alter the basic structure or framework of the Constitution so as to change its identity’.^[402] Basic constitutional features, in the opinion of the Indian Supreme Court, included, amongst others, the form of gov­ernment, the separation of powers, the essence of fundamental freedoms and the federal character of the Constitution.^[403] Should one of these principles be seriously violated, the amendment would be struck down. This ‘basic structure doctrine’ has been highly influential in a range of legal systems, such as Nepal, Bangladesh, South Africa and, to some extent, Pakistan.^[404] Due to its origins as judge-made law, this doctrine is strongly connected to the possibility of judicial review of the amendment power. Although some jurisdictions, such as Pakistan, show that it is still possible for the judiciary to contemplate implicit substantive limits without actually engaging in review itself that situation remains exceptional.^[405]

The question we focus on, in this contribution, is whether this mechanism of informal substantive unamendability is likely to occur in the politically enforced constitutions of the UK and the Netherlands. And it is this concept of politically, as opposed to judicially enforced constitutions to which we now turn.

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