An Unamendable Constitution?

Unamendability is a growing trend in global constitutionalism. Yet, unamendability, as a constitutional mechanism, raises various challenges and objections. Mainly, by perpetuating certain constitutional rules, values and institutions, unamendability exacerbates the ‘dead hand’ of the past, and by restricting all constitutional possibilities available to the people to revise their constitution, unamendability is seen as undemocratic and dangerous as it encourages extra-constitutional and revolutionary means in over to modify unamendable principles. Furthermore, the judicial enforcement of unamendability grants courts vast powers over other governmental branches, turning the judiciary into the final arbitrator of society’s values. This chapter identifies and analyses the main theoretical, practical and textual challenges to unamendability. It demonstrates that unamendability is a complex mechanism which ought to be applied with great care. Yet, it also argues that if the theory of unamendability is correctly construed as a mechanism which reserves a constitutional space for the decision-making of ‘the people’ in their capacity as holders of the primary constituent power (in contrast with the limited amendment power), this mitigates many of the challenges raised by unamendability.

Although no constitution is truly eternal, the justification for heightened constitutional entrenchment remains an important problem. The paper provides a novel typology of constitutional eternity. Further, it argues that eternity clauses decrease constitutional flexibility and therefore endanger the longevity of the constitution. The importance of explicitly considering dynamic efficiency is shown and a novel justification for eternity clauses is provided based on this aspect. Since eternity clauses increase the cost of constitutional change, they are suited as barriers against the redistribution of political rents deriving from constitutional protection. The paper concludes by proposing a test of justifiability based on dynamic efficiency.

Legal scholarship on the unamendability of constitutional provisions tends to focus on legal systems with a strong tradition of judicial review of legislation. Legal systems such as the United Kingdom and The Netherlands, where the constitutionality of laws is a matter for the political branches and not for the courts, are routinely ignored. They do not fit existing perceptions of constitutional unamendability and arguably fall well outside the categories of either explicit or implicit constitutional unamendability. Nonetheless, these ‘politically enforced constitutions’ still contain mechanisms of unamendability, be it of an informal nature. These take the shape of judicial or institutional disobedience. The doctrine of unconstitutional constitutional amendments thus becomes relevant to a broader range of constitutional systems. However, this type of unamendability requires a more subtle approach. It does not emerge from constitutional provisions, whether explicit or not, but rather occurs in the form of a constitutional convention of unamendability. The question whether parts of the constitution should be regarded as unamendable thus cannot be solely couched in the all-or-nothing terminology of legal rules. Instead, conventions of unamendability, due to their principle-based character, may be subject to changing circumstances and exceptions. Existing literature on constitutional conventions may be used as a model in order to build a framework of analysis for the concept of constitutional unamendability in politically enforced constitutions.

Constitutions have seen an increasing number of unamendable provisions over the last decades. We look at the functional value of unamendable provisions as commitment devices, as they are often described, and present a new theory based on unamendability as drafters’ paternalism. We find unamendable provisions to be undesirable commitment devices. The key problems that limit unamendable provisions’ desirability relate to preference changes over time and the risk of abuse by self-interested drafters. These problems can be more generally seen as risks of strong entrenchment. We then provide a new, functional perspective for unamendable provisions under a framework of paternalistic policies. In so doing, we take an incentive-based perspective of drafters, which stands in stark contrast to the assumption of drafters losing their self-interest during constitutional moments.

What impact does India’s acclaimed “basic structure” doctrine have on the text of the Constitution? Constitutional theorists have long neglected this question in favour of debates surrounding the implications of the doctrine on separation of powers, popular sovereignty and the role of the judiciary in a constitutional democracy. Over the years, the Indian Supreme Court has struck down multiple provisions of the Constitution on basic structure grounds. These provisions have formally remained part of the text, producing constitutional falsehoods—significant disjunctures between text and practice. By considerably extending the contours of the basic structure doctrine, the Indian Supreme Court’s decision in the Fourth Judges Case exacerbates the potential for these falsehoods. This chapter considers how these falsehoods have arisen, the attempts to redress them, and what they mean for constitutional interpretation outside of the courts.

This chapter explores unamendability in Israel. Even though Israel has no full or formal constitution, and no specific amendment rules, two forms of unamdenability could be identified. The first form is concealed unamendability, which prevents certain kinds of amendments through controlling the composition of the Knesset (the legislature which also has the power to enact and amend constitutional Basic Laws). The second is judicially-introduced unwritten unamendability. Unamendability in both cases aims to protect Israel’s definition as a Jewish and democratic state. The chapter will examine both forms of unamendability and the functions they serve, highlighting the expressive and the preservative functions. It will also examine the implications of unamendability for constitutionalism in Israel emphasizing the impact of entrenching particular values such as the Jewish definition and its contribution to creating a hierarchy among the citizenry and the entrenchment of favourable status for certain groups.

Many modern constitutions today contain what is called eternity clauses (also known as constitutional entrenchment), which make one or more constitutional provisions unamendable. The Constitution of the People’s Republic of Bangladesh (hereafter ‘the Constitution’) originally did not enact any such eternity clause. An eternity clause, however, has been entrenched in 2011 through the 15th amendment to the Constitution. Long before the enactment of the eternity clause, the Supreme Court of Bangladesh in a 1989 famous decision established the basic structure doctrine or the idea of ‘unconstitutional constitutional amendment’, ruling that Parliament lacks authority to amend the Constitution in a way that would destroy its basic structure. By invoking the basic structure doctrine, the Supreme Court has so far struck down 4 out of 16 constitutional amendments with finality. After the Court handed down its annulment decision in May 2011 invalidating the 13th amendment, the Constitution was amended to enact, among others, an extraordinarily wide eternity clause, article 7B. With this, Bangladesh became the second country in South Asia, after Afghanistan, to have constitutional entrenchment.

The chapter argues that, if we understand constitutionalism as a legal concept, the unamendability of certain constitutional norms becomes party independent of explicit constitutional declarations. The Hungarian case explains that unamendability can be justified as a judicial discovery even when the constitution does not adopt explicit rules on unamendability. Moreover, even if there is no explicit rule in the constitutional text or even if there is no explicit declaration of unamendability in constitutional court case law, legal interpretation methods help to argue that some sort of unamendability is a basic feature of constitutionalism awaiting its legitimate judicial discovery. In analysing the Hungarian example, while bearing in mind the comparative and the theoretical context of the discussion, I arrive at the inductive conclusion that unamendability might belong to the nature of legal constitutionalism. Turning a rule of law democracy into an autocracy, e.g., by constitutional amendments is not a valid legal solution in most constitutional democracies regardless of whether their constitution contains eternity or other entrenchment clauses or not. This is so because, in a rule of law democracy, a living constitution is partly a judicial construction and, in applying a legal doctrine, one finds normative requirements applicable to fundamental constitutional changes. I argue that these requirements can validly be enforced by the guardians of the constitution.

The power which has the right to approve a constitutional norm is called pouvoir constituant. The original pouvoir constituant which drafts a new constitution is hierarchically higher than the derived one which has only the right to amend an existing constitution in the framework allowed by the original one. In other words, parliaments who want to amend the constitutions are limited by the unamendable provisions. In 1968, Parliament of Germany added the 4th paragraph (which provides German citizens the right to resist any person seeking to abolish the constitutional order) to Article 20 which had been rendered unamendable by the Article 79 of the Basic Law of Germany during the drafting process in 1949. Consequently, although this newly added paragraph is present in an unamendable article, any derived pouvoir constituant can amend, change or annul it because it is not approved by an original pouvoir constituant.

Constitutional Conciliation Commission (Anayasa Uzlaşma Komisyonu—AUK) of Turkey, established after the 2011 general elections but called off after the commission could not overcome an impasse on a number of issues, was nevertheless a significant experience in Turkey’s constitutional development. One of the issues that led to the deadlock in the commission was the controversy over unamendable articles. A point of divide among the four parties that made up the commission was whether the new constitution would maintain the eternal clauses of the present constitution that entrench the republic form of the state, its characteristics, and its language or whether it would not include any irrevocable articles. Except the republic’s first constitution of 1921, the three constitutions of modern Turkey included unamendable constitutional provisions, which had previously led to political and constitutional controversies. The subject of unamendable articles was one of the last issues that the commission discussed before the 25 months of enterprise was dissolved. This article traces the evolution of unamendable articles in Turkish constitutions, examines the political parties’ proposals for the draft constitution and analyzes the debates conducted within AUK. It concludes that members of the AUK held irreconcilable positions with respect to unamendability and unamendable articles, which contributed to the breakdown of the negotiations.

Although it has not been constitutionally empowered to do so, the Turkish Constitutional Court has exercised substantive review of constitutional amendments under three different constitutional settings, striking down amendments to the normally amendable provisions of the Turkish constitution. In doing so, it relied upon the unamendability clauses. The Court created an intra-constitutional hierarchy based on the unamendable clauses and exercised substantive review of constitutional amendments to check whether amendments violated the principles laid down in the unamendable clauses. This chapter looks at whether this judicial practice of identifying a constitutional core and exercising substantive review of constitutional amendments on this basis can find a justification in Carl Schmitt’s distinction of the constitution and constitutional laws. In the first part, it argues that while Schmitt’s distinction, which is based on democratic decisionism, might justify the Court’s reasoning that there are limits to constitutional amendment; his understanding of the guardian of the constitution is incompatible with the judicial oversight of the constituent decision. What makes Schmitt’s radical democratic constitutional theory consistent is his conception of the popularly elected head of state as the guardian of the constitution. Such conceptual justification of constitutional unamendability is not compatible with judicial review of constitutional amendments. In the second part, the chapter analyses all of the unamendability cases the Turkish Constitutional Court has decided and explains the Court’s arguments with regard to its authority over constitutional amendments. The chapter concludes by explaining that even if a Schmittian account of the constitution is adopted, the unamendability clause in the Turkish constitution remains a merely political and not a judicial check on the constitutional amendment power.

Unamendability appears to be a contradictory concept in Latin America. Though the rate among its countries varies strongly and the pace of constitutional replacements has waned in the last years, Latin America has long been portrayed as the region where changing the constitution is a common pattern. This paper will explore how this debate has taken place in Brazil, a major player in Latin America whose constitutionalism has been rather underexplored, though unamendability has long been regarded as a logical concept in its constitutionalism. Brazil is an interesting example since it has inscribed far-reaching unamendable provisions in its Constitution and has struck down constitutional amendments through judicial review in some relevant cases. Moreover, the fact that it had set out unamendable clauses in the constitutional text has not prevented its Supreme Court and the constitutional literature from going further in interpreting the scope of such clauses, expanding thereby the very concept of unamendability.

When debating which constitutional values are shared among European countries, scholars increasingly refer to the European Common Constitutional Heritage, which is a common set of values defined through their constitutional evolution and thanks to the role played by supranational regional organizations, such as the Council of Europe (CoE) and the European Union (EU). This essay discusses the interplay between said common heritage and the unamendable provisions in constitutions approved in Italy and Germany after World War II and in Romania and Czech Republic after the fall of the Berlin Wall. Given that European values crossed continental borders thanks to regional forms of cooperation, this essay also analyzes the Constitutions of Morocco and Tunisia in order to understand whether the unamendable constitutional provisions of each country, introduced after the so-called Arab Spring, have been influenced by and are consistent with the European Common Constitutional Heritage.