Constitutional Amendment Procedures and Principles

Preliminary Observations on Constitutional Amendments

Key considerations include:

• Finding a proper balance between rigidity and flexibility in the amendment process.
• Avoiding two potential pitfalls: rules for constitutional change being either too rigid or too flexible.

Initiating Constitutional Amendments

• Typically, the Parliament holds the right to initiate the amendment procedure.
• Individual members of parliament may have this right in some constitutions, but not in others.
• Some constitutions grant this right to the Government, the Head of State, or local authorities.
• Several constitutions allow citizens to initiate a proposal through popular vote or initiative.
• Some constitutions mandate a specific time interval between the initiative and the parliamentary debate.
• In most European countries, a qualified majority is required:
  • Unicameral systems: Common requirements include majorities of 3/5, 2/3, or 3/4.
  • Bicameral systems: Approval from both chambers is usually needed, often with specific qualified majorities (e.g., 3/5, 2/3).
• The specific majority required to adopt an amendment can differ significantly between countries.

Role of Referendums

The amendment procedure may take place entirely within the parliament or involve a referendum for final approval.

Special Limitations on Amendments

Certain limitations may apply:

• Temporal limitations: Amendments might be restricted during times of war or other special situations.
• Special procedures: Specific, more demanding procedures may apply to certain types of amendments.
• Unamendable principles: Some core constitutional principles may be declared unamendable.

Total Revision and New Constitutions

A total revision of the constitution or the adoption of a new constitution usually follows the same, or a similarly rigorous, procedure as amendments.

Involvement of the Constitutional Court

The involvement of the Constitutional Court in the amendment process varies depending on the country's legal framework.

Mechanisms for Constitutional Constraints

Methods to ensure constitutional stability and control change include:

• Legal actions designed to challenge or obstruct a constitutional change.
• Most commonly: Requiring qualified majorities and imposing mandatory time delays in the amendment process.

Striking the Balance: Rigidity vs. Flexibility

• The quest for constitutional stability must be evaluated on a case-by-case basis. The ideal balance point between rigidity and flexibility differs between states, depending on their political and social context, culture, age, and the level of detail in the constitution.
• Two important alternative, legitimate ways constitutional change occurs are through judicial interpretation and the evolution of constitutional custom and conventions.

Amending Different Constitutional Categories

Amendments often target different categories of rules. Two significant categories are:

• Institutional rules: Covering electoral systems, separation of powers, budget processes, legislative procedures, etc.
• The Bill of Rights: Protecting fundamental rights and freedoms.

Unamendable Provisions and Principles

Some constitutions explicitly protect certain provisions and principles from amendment, such as:

• Territorial indivisibility
• Form of government (e.g., republic)
• Federal structure
• National sovereignty
• Certain fundamental rights and freedoms

Conclusion: Principles for Amendment Procedures

• A stronger procedure for constitutional amendments compared to ordinary legislation is a key principle of constitutionalism.
• There are valid reasons why constitutions should possess elements of both rigidity and flexibility.
• Parliament is often considered the most appropriate body to manage the amendment procedure.
• A good amendment procedure typically involves qualified majorities and certain time delays.
• Rules and procedures for amendment must be clear and relatively simple to understand and follow.
• Constitutional change should preferably be adopted through the formal amendment process.
• Constitutions adopted under undemocratic systems should be open to review and democratic debate for potential amendment or replacement.