Requirements for Constitutional Amendments
As highlighted above, the design of the provision on constitutional amendments is elementary for striking the balance between a flexible and stable constitution. Beyond, an amendment procedure might want to somehow reflect and maintain the initial process of making the constitution. Participatory and inclusive processes are considered the norm in today’s constitution making process including a referendum at its end, thereby voicing the need to have the constitution directly approved by the popular sovereign. Taking this perspective, one might ask whether also the amendment procedure should include deliberative elements and the electorate rather than regarding parliament as the sole “guardian of the constitution”.
Many constitutions require additional bodies or institutions to be involved in the process of constitutional amendments and/or partly require a specific procedure to be applied. Through quite individually tailored approaches, countries tried to meet their own balance between flexibility and stability of their constitutions. The effect of one option in the one or other direction cannot be precast without knowing the political culture and landscape of a country. E.g. in the US, due to the electoral system and the spectrum of political parties, the 2/3 majority threshold as the first part of the constitutional amendment procedure already proves to be hard to overcome, whereas the same threshold is not a high barrier for amending the constitution in South Africa. Similarly, the requirement of a national referendum as such might be an exceptional burden to some countries, whereas others have a well established system of direct democracy even as part of the ordinary legislative process (Switzerland). Hence, practical experiences from other countries should be approached with caution before taken over blindly. To a large extent, they confirm that the expected effects are to a lesser degree the result of a specific norm, but of the political landscape.
Despite the vast variety of different provisions on constitutional amendment throughout the globe, one might identify some rough models that are commonly applied in different shades. Those models might serve as an initial stimulus on the drafter’s search for the adequate individual solution in their respective countries. In some countries, a various options can be applied alternatively.
(a) Constitutional Amendment trough a qualified majority only
One common way to amend the constitution is to increase the threshold of consent within parliament compared to ordinary legislature. Instead of a 50% + 1 majority, a 2/3, 3/5 or 3/4 majority is required.
(b) Constitutional Amendment requiring the direct involvment of the people through referendum
In addition to parliamentary majority, some constitutions require for every constitutional amendment the direct participation of the people in a referendum. Again other constitutions ask for a referendum only if specific provisions are to be amended (see below). Concerns have been raised that this concept of having a referendum might not fit very well for ensuring constitutional protection of minorities due to its majoritarian bias. To meet this concern, some (federal) constitutions therefore require not only a nationwide majority in a referendum, but also that in the majority of sub-units the respective people have voted in favour of a constitutional amendment.
(c) Constitutional Amendment requiring the indirect involvment of the people through elections
A more indirect way of involving people as part of the process for constitutional amendments is to allow for parliamentary elections between the adoption and the coming into force of an amendment. The legislature is either immediately dissolved after adoption of the amendment or the draft for amendment is put on hold until the next regular elections. In both cases, the newly elected legislature has to pass the law without material alterations. Through this process the constitutional amendment might become part of the electoral campaigns for the legislature. It is left with the individual voter to decide in how far the suggested amendment might impact his voting decision. The downside of such an option might be that either the constitutional amendment adumbrates other important political issues normally relevant in elections or in turn the amendment might be sidelined in a general campaign. Two further thoughts might be relevant for the first alternative mentioned above: For each Member of Parliament, the immediate dissolution of the legislature might also put his / her membership at risk in the course of new elections and therefore might influence his / her decision to agitate for an amendment. In addition, elections are a quite costly to run and might cause financial challenges if triggered too often.
See the supplementary for
Constitutional Provisions requiring the straight or indirect involvement of the people as part of the amendment process
(d) Institutions or parts thereof might trigger the need for public participation through referendum while amending the constitution.
Another concept being applied in some constitutions is to allow a governmental institution to decide whether an amendment should also be subject to a referendum. E.g., a fraction of parliament might decide to put a constitutional amendment passed by legislature for referendum. A parliamentarian minority is thereby given the option to let the people decide against a constitutional referendum that it could not prevent within the legislature. It has to be carefully balanced in how far such an opportunity allows for a wider and more inclusive democratic participation or rather permits a small group in opposition to stalemate a decision making process.
A quite antipodal approach is chosen by the French Constitution. It requires in general a referendum for a constitutional amendment after the bill has been adopted by the legislature. However, for an amendment initiative initiated by the executive, the president might refuse submitting it for referendum and ask the legislature convened in congress (the two chambers sitting together) to pass the bill by a three-fifth majority.
See the supplementary for
Constitutional Provisions where a referendum might be triggered by other institutions / parts thereof as part of the amendment process
(e) Involvement of representative bodies in a federal system
Federal constitutions require the sub-units to be involved in the amendment procedure at least through one representative body. Since an amendment of the constitution might negatively impact the pact between the national level and the sub-unit level, the two parties to the pact (national level and sub-national levels) needs to agree at least insofar. Generally, sub-units are represented at the national level through a second chamber in the legislature and need to be involved in the constitutional amendment procedure, at least if provisions that affects the sub-units interest are involved. In some federal countries, the approval from a certain percentage of sub-unit parliaments is needed as an additional requirement.
See the supplementary for
Constitutional Provisions requiring the consent of a body representing the sub-units as part of the amendment process
(f) Involvement of a 2nd chamber in other than federal countries
Even in non-federal system with a bicameral legislature, regions are often represented in a second chamber that might be involved in the amendment procedure. However, its lack of consent is only seldom an absolute impediment for the amendment of the constitution. This holds also true for those second chambers in which other interest groups are represented.
See the supplementary for
Constitutional Provisions that require the involvement of an additional representative body as part of the amendment process
(g) Time specific limitations on constitutional amendments
Some constitutions only allow for their revision after a specific period of time had lapsed, sometimes several years. Such an imposed form of stability on the constitution might turns out to be helpful to allow for a proper implementation, precluding ongoing discussions against the amendment. Especially for constitutions that have been freshly adapted or completely revised after a situation of conflict such a respite might be useful to provide time for stability and a smooth start. Without being able to precast the future, on the other hand, this kind of moratorium might also overly burden a society to continue with a constitution that had become inadequate. It might be advisable to allow at least for consensus driven amendments in those circumstances. Another type of specific time limitation might be helpful to avoid constitutional amendments driven by individuals in government: Any constitutional amendment that addresses the status of individuals or a group of individuals only become effective for those not yet holding the very position. E.g. an extension of the president’s term of office does not apply for the person holding that office while the constitution had been amended.
See the supplementary for
Constitutional Provisions requiring time specific limitations
(h) Majority Supported by All Parties in Parliament
Although –to the author’s knowledge- not yet tested in constitutional reality, the following consensus driven approach might be worth considering: Especially in post-conflict countries in which a constitution emerged as a result of cautious negotiations from various groups, one might delink the amendment of the constitution from a static super-majority approach by focusing on an all party parliamentary support. Under this concept, each party represented in parliament has to vote in favour of the amendment by a majority of its members sitting in parliament. A wider range of political opinions is thereby included in the process causing also a more vivid parliamentary debate since a larger range of supporters need to be convinced to vote in favour of the amendment. Counting in numbers, less parliamentarian votes are needed to amend the constitution compared to a 2/3 majority requirement although all groups consented. In contrast, if strong parties with a strong party discipline are praevalent, a de facto consensus of all members of parliament might be necessary.