Variation of amendment procedures within one constitution

(a) Introduction

Another option to strike a balance between flexibility and stability of a constitution is to require different thresholds for the amendment of different provisions. Some crucial parts of the constitutional agreement might need to be particularly protected, especially as part of a post conflict deal, whereas others should be more responsive to changing needs in society.

Two questions might become relevant in this context: Which provisions should be protected and what kind of additional threshold might be introduced?

First, the question which substantive parts of a constitution might be subject to a higher threshold of getting amended can hardly be answered in abstracto. Depending on the type of previous experiences and disappointments, different additional thresholds might help to build a higher degree of trust into the constitutional agreement. However, some issues seems to be included more often than others: the system and form of government, the type of elections, the integrity of internal borders, the referendum, the provision for amending the constitution, national languages, religion, etc.

Second, the question on the kind of an additional threshold again depends on the individual situation in a country. Increasing the percentage of the required majority in parliament might be an effective constraint in some countries, but not in others where there is a dominant political party holding the vast majority of seats in parliament or where it is customary to govern in broad coalitions. It might also not always serve the purpose to have a popular referendum as an additional threshold for e.g. constitutional minority rights. Especially in ethnically divided society with a dominant ethnic group such an additional threshold might proof irrelevant.

(b) Higher thresholds for the constitutional amendment of some provisions

Being aware of the context sensitivity of this issue, it might nevertheless be helpful to gain an overview over the different options applied in other constitutions:

• Parts of the constitution can only be amended with an extra high majority in parliament (e.g. 75% instead of 2/3 majority).
• Parts of the constitution can only be amended after having also been submitted to a national referendum (in addition to the generally required qualified majority in parliament).
• In some federal countries, those constitutional amendments that also affect the sub-units’ interest require the consent of the second chamber as the representative organ of the sub-units at the national level.
• Parts of the constitution can only be amended as part of a total revision (including the convention of a Constitutional Assembly that is about to draft the new constitution)

See the supplementary for

Constitutional Provisions providing different thresholds for the amendment of the constitution

(c) Limitations to constitutional amendments: unamendable provisions

Beside the various degrees of procedural limitation stated above, some constitutions also introduced substantive and irrevocable limitations through a clause that sets restrictions to amend parts of the constitution at all. Such a clause might refer to central pillars of the constitution, to rights given to minorities, to human rights, to religion, to sensitive parts of the constitutional agreement or to issues that historically have caused bitterness and should not be subject to revocation again. However, the decision to make parts of the constitution unamendable should not be taken lightly: Even consensus in parliament backed by strong support from the people might not qualify to alter the content of the pertinent provisions.

The way existing constitutions have phrased such a clause differs widely and might serve as an initial inspiration for what clause –if at all- might be appropriated for a specific country:

• Some constitutional provisions are rather vague, only prohibiting a constitutional amendment that runs counter to its principles and spirit, without clearly identifying them. As a result, it remains nebulous what might be amended or not and might cause more uncertainty than stability.
• Frequently, the clause refers to provisions relating to the structure of the state, human rights, mode of government, etc.
• Sometimes reference is made to very specific issues such as fixing the terms of the president.
• Sometimes, limitations to amend the constitution are not focusing on substantive issues, but prevent constitutions to be altered during times of war or emergency
• Occasionally, a self reference is included to underscore that the spirit of that clause is not circumvented by abrogating the clause as such.

See the supplementary for

Constitutional Clause limiting the amendment of the constitution