Constitutional Amendment Procedures Research Articles

The (Il)legitimacy of Constitutional Amendments in Africa and Democratic Backsliding

Abstract In many African countries with hegemonic-party or de facto one-party systems, political leaders have historically exploited ostensibly proper constitutional amendments to undermine constitutionalism, a practice raising questions about the legitimacy, or lack thereof, of such amendments. This article argues that amendment legitimacy is contingent on achieving ‘broad consensus’, a concept endorsed by the African Charter on Democracy, Elections and Governance. Traditional amendment procedures, such as supermajorities and referendums, while crucial, have proven to be imperfect proxies for ensuring such broad consensus. To more effectively safeguard the core constitutional rules of democratic governance, this article contends that political parties must be recognised as key sites of power division and checks and balances. Accordingly, constitutional amendment procedures should require some level of cross-party approval for key amendments, thus preventing individual political groups, regardless of their dominance, from unilaterally altering fundamental rules of the game. This approach would not only enhance the legitimacy of amendments but also serve as a safeguard against contemporary forms of democratic backsliding, where incumbents exploit formal processes to undermine democratic competition. While this process might make constitutional changes more difficult, it would apply only to a narrow set of fundamental aspects of constitutional democracy. Moreover, it does not necessarily conflict with popular self-governance (and its majoritarian expression), but instead calls for an inclusive re-imagining of majoritarianism.

스위스의 헌법개정절차와 사례에 대한 연구

In revising the constitution, there are various types of constitutional amendment procedures depending on whether or not popular initiative and referendum are introduced. For instance, Switzerland's constitutional amendment procedure has both popular initiative and referendum, but that of Korea does not have popular initiative.
 In Korea, a constitutional amendment and proposals to introduce a popular initiative to the Korean Constitution are being proposed. For example, in 2020, 148 lawmakers proposed a constitutional amendment bill to introduce a national initiative. In addition, the advisory committee of the National Assembly's Special Committee on Constitutional Amendment in 2016 and the Korean Constitutional Society in 2020 respectively proposed opinions to introduce a popular initiative. In improving the Korean constitutional amendment procedure, a popular initiative is being raised as a strong alternative.
 However, because Korean constitutional revision procedure has essential referendum and the Korean National Assembly has no right to amend the proposed constitutional amendment, if a popular initiative is introduced while maintaining the current revision procedure, considerable administrative costs and inefficiencies may happen. In other words, according to the introduction of the popular initiative, constitutional amendments may be frequently proposed, and after being referred to the referendum without amendment by the National Assembly, the referendum may be carried out in each constitutional amendment. According to a certain study, each referendum costs up to 150 billion Korean won.
 Switzerland has more than 130 years of experiences and various systems in operating both referendum and popular initiative as a constitutional amendment process. Therefore, this study would like to examine Switzerland's constitutional amendment procedures and cases, and to derive implications for the Korean constitutional amendment procedure.

87년 헌법 개정론의 의의와 한계

There is a need for a sequential and gradual process of constitutional reform, with targets that reflect the strong need for constitutional reform and the level of consensus at various levels.
 It is also necessary to respond to the fact that the flawed political representation system has been an essential problem of the 1987 Constitution. That is, efforts should be made not only to emphasize representation in the constitutional revision process, but also to ensure sufficient participation of the people, who hold the authorship of the constitution, in accordance with the principle of sovereign people, which is the highest principle for the formation of national power structure. As a realistic alternative, it is necessary to actively embrace the civic and deliberative public debate system in the constitutional amendment process rather than the traditional method. This can be achieved to a certain extent through legislative reforms such as the Constitutional Amendment Procedure Act or the Referendum Act, rather than constitutional amendments.
 In the end, we believe that sequential partial constitutional amendments, along with the democratic institutionalization of the constitutional amendment process, including the introduction of a deliberative public debate system, is a realistic alternative to inherit the achievements of the 1987 Constitution, improve its shortcomings, and build a new level of democratic republic.

Anayasa Değiştirme İktidarının Kötüye Kullanılmasını Önlemeye Yönelik Anayasa Değişikliği Usulünün Farklılaştırılması

Constitution-making powers impose limitations on their power to amend the constitution in the constitutional texts they prepare. These limits are intended to prevent the differentiation or abolition of the basic philosophy of the constitution and the constitutional order established by the power to make the constitution. These limits, which are brought in order to prevent the constitutional amendment powers from making changes other than their purpose, are realized by further protecting the principles and values that are given special value in the constitutions of some countries and that constitute the basic philosophy of the constitution. In other words, some provisions that constitute the basic principles and values of the constitution are subject to a different amendment procedure compared to other provisions of the constitution. This differentiation procedure includes additional conditions such as a qualified majority, a referendum, or the passage of a certain period of time in the amendment process. In this study, the differentiated constitutional amendment procedure and whether these procedures have an effect on the abuse of constitutional amendment power have been examined. Keywords: Constitutional amendment power, constitutional amendment procedure, differentiated constitutional amendment procedure, abuse of constitutional amendment power.

Constitutional Amendment Procedures in the World and Suggestions for Vietnam

The Constitution, which has the highest legal effect, stipulates the most important and fundamental principles of the political regime, the organization of state power, human rights and fundamental rights of citizens. Therefore, amending the constitution is not only a serious legal event, which significantly affects the legal system in general, but also affects many aspects of social life. The constitutional amendment procedure shall be difficult and complex to avoid arbitrary change as well as be applicable and feasible to process. Guaranteeing this balance is not easy, and vary in different historical circumstances. This explains why the constitutional amendment procedure is still an important and preferred subject in legal studies though it is not a new issue. This article focuses on studying some basic theoretical issues about the constitutional amendment and constitutional amendment procedures in the world; on this basis, this article makes some recommendations for constitutional amendment procedures in Vietnam.
 Keywords: Amending constitutions, making constitutions, constitutional review.
 

뉴노멀 시대의 헌법개정

Under the health crisis caused by the COVID-19 pandemic, the role of the state should be expanded. The state should not only guarantee the safety of individuals' lives from the risk of infection, but also help individuals to maintain their own lifestyle. Meanwhile, in order to prevent the spread of infection, the state has no choice but to restrict the freedom of assembly and association of individuals. If there is a limit to appropriately responding to new social phenomena triggered by COVID-19 through the application of the existing legal system, constitutional amendment needs to be considered as the next step. Looking back on the history of constitutional revision of the Republic of Korea in the past, the constitution has been amended for the purpose of legitimizing power in the context of political change. The constitutional amendment have not been tried for the purpose of adapting to social change. However, it is time to consider the constitutional amendment according to the needs of the people. And in the age of new normal of COVID-19, we need to consider the constitutional amendment to actively accommodate these social changes. However, it is true that it is practically difficult to amend the constitution through the constitutional amendment procedure stipulated in the current constitution. What made the constitutional amendment process difficult was to prevent the constitutional amendment from being misused by powered people. However, the democracy of the Republic of Korea has now stabilized to some extent, and society has changed significantly under the current constitution. Moreover, in the current crisis situation, constitutional amendment is requested. Therefore, it is necessary to revise the constitutional amendment procedure so that it is possible to amend the constitution if it is necessary to adapt to social change.

The “due process” of constitutional revision: which guidance from Europe?

This paper deals with the influence exerted by the Council of Europe, notably by the Venice Commission, and by the European Union on constitutional amendments with a special focus on Italy, a founding member state of both organisations. It proceeds as follows: it first provides a quick introduction into the vexata questio of the difficult balance between rigidity and flexibility of democratic Constitutions, well-illustrated by the academic debate and by the Venice Commission’s Report on constitutional amendments of 2010 (CDL-AD(2010)001). Second, the paper considers which European standards have been set, especially by the Venice Commission, to design an effective and legitimate constitutional amendment procedure, and whether the Italian constitutional provisions and practice have abide to them. Third, the contribution reflects on the influence exerted by the Italian participation in the Council of Europe and in the European Union on the substance of the amendments adopted to the Italian Constitution. It is argued that at least since the mid-Twentieth century constitutional amendments procedures can no longer be treated as purely national phenomena. They are more and more guided by standards set at supranational level, notably by the Venice Commission, as derived by the European common constitutional heritage. The influence is exerted both on a procedural level, defining what can be called as the “due process” of constitutional revision, and on a more substantive level.

Overcoming Judicial Supremacy through Constitutional Amendment: Some Critical Reflections*

AbstractThis paper critically examines the proposal to overcome the judicial definition of fundamental rights by using constitutional amendment procedures. Authors known as “political constitutionalists” have advocated weak‐form judicial review as an alternative to the constitutional practice currently prevailing in liberal democracies. The proposal under consideration here seeks to achieve this alternative by making constitutional amendment as easy as possible, i.e., through minimal constitutional rigidity. The discussion begins by questioning the idea of adopting institutional design as a suitable criterion for rating a judicial review system as “strong” or “weak.” Then the alleged relevance of constitutional amendment in the specification of constitutional rights is called into question. Lastly, the paper reaches a double conclusion. On the one hand, minimal constitutional rigidity is not an alternative to prevailing constitutional practice, but a more collaborative version of the same practice; on the other hand, minimal constitutional rigidity only represents a genuine alternative design when it is part of a model (“strong popular sovereignty”) aimed at overcoming the current constitutionalist paradigm.

Retweeting Constitution of Zambia (Amendment) Bill Number 10 of 2019: Support and Outrage

passed into law could have greatly created uneven impacts on key sectors of society within Zambia. In trying to review the support and outrage of Bill 10 on Twitter, this article uses thematic analysis to investigate 600 Bill 10-related tweets from 21st June 2019 to 21st June 2020 that were retweeted at least 500. The statistical cybermetrics and thematic approaches used generated quick insights into widely resonating subjects of Bill 10 related issues at the time of debate in Zambia. The findings in this article are highly suggestive of the value of Twitter for disseminating information and in this case more especially about understandings, contents and contexts of governance issues of Bill 10. Twitter also offered or requested for support, the ability of many citizens with divergent views and different political affiliations to adjust to the process of the amendment of Bill 10, and information about the contents of the Bill in Zambia. This article highlights, that as gathered from Twitter, it is key to entrench fundamental principles in constitution amendment processes and such principles in a constitutional text, the idea is to firmly embed them, making them very difficult for any governing body to change for their own advantage. Bill 10 retweets shows that amendment procedures are vital for the protection of the underlying constitutional principles, and are generally considered to have a somewhat unassailable status. As shown by many tweets analysed, a government supporting amendment to the constitutional amendment procedure, could in itself be considered an abuse of power.

Retweeting Constitution of Zambia (Amendment) Bill No.10 of 2019: Support and Outrage

At least to the majority of tweets, the Zambian Constitution of Zambian Amendment Bill number 10 if successfully passed into law could have greatly created uneven impacts on key sectors of society within Zambia. In trying to review the support and outrage of Bill 10 on Twitter, this article uses thematic analysis to investigate 600 Bill 10-related tweets from 21st June 2019 to 21st June 2020 that were retweeted at least 500. The statistical cybermetrics and thematic approaches used generated quick insights into widely resonating subjects of Bill 10 related issues at the time of debate in Zambia. The findings in this article are highly suggestive of the value of Twitter for disseminating information and in this case more especially about understandings, contents and contexts of governance issues of Bill 10. Twitter also offered or requested for support, the ability of many citizens with divergent views and different political affiliations to adjust to the process of the amendment of Bill 10, and information about the contents of the Bill in Zambia. This article highlights, that as gathered from Twitter, it is key to entrench fundamental principles in constitution amendment processes and such principles in a constitutional text, the idea is to firmly embed them, making them very difficult for any governing body to change for their own advantage. Bill 10 retweets shows that amendment procedures are vital for the protection of the underlying constitutional principles, and are generally considered to have a somewhat unassailable status. As shown by many tweets analysed, a government supporting amendment to the constitutional amendment procedure, could in itself be considered an abuse of power.

ANALISIS YURIDIS KETENTUAN PASAL 37 UNDANG-UNDANG DASAR 1945 SETELAH AMANDEMEN TENTANG PROSEDUR PERUBAHAN UNDANG-UNDANG DASAR DALAM PERSPEKTIF DEMOKRASI KONSTITUSIONAL

Indonesian independence is a new era in the formation of the constitution and order of state life. Because it was at this moment of independence that Indonesia first formed its written constitution in a standardized manner and compiled it into a state sheet. The constitution is called the 1945 Constitution of the Republic of Indonesia, which has been amended four times to date. The points that become the discussion are regarding the provisions contained in Article 37 regarding the procedure for amending the 1945 Constitution whether it has applied the principles of constitutional democracy because the last amendment of the amendment to the 1945 Constitution from the provisions of Article 37 cannot be implemented anymore. The purpose of this research is to examine and analyze whether the provisions of Article 37 of the 1945 Constitution have applied the principles of constitutional democracy. The research methodology used is normative juridical with a descriptive analysis approach. Based on the results of the research on the amendment procedure of the 1945 Constitution, it adopts a method of change known as "verfassungs-anderung", namely a way of changing the constitution deliberately in the manner specified in the constitution. Then use a system of changes "constitutional reform". With the "formal juridical" pathway and completed as changes by means of "formal amendments", namely changes to the constitution which are made in accordance with the provisions contained in the constitution. So in other words Article 37 of the 1945 Constitution regarding the procedures for amending the 1945 Constitution has inspired the values of democratic principles procedurally but the substance of the provisions of Article 37 of the 1945 Constitution is not fully applied to the principles of constitutional democracy because there are still many provisions in Article 37 regarding the procedures for amending the 1945 Constitution. This still needs to be studied in depth, because of its flexible nature after the changes, but its content is still rigid and difficult to change. Keywords : constitutional, democracy, , constitutional amendment procedure

Constitutional Amendment and the Democratic Mediation of Political Disagreement: Assessing the Impact of Deliberative Mini-Publics

Ireland has been to the forefront of the constitutional turn in deliberative democracy, with referendums on same-sex marriage and abortion—held following deliberative mini-publics — attracting global attention. Little more than cursory reference has been made, however, to the recommendations of Ireland’s deliberative mini-publics that did not gain traction in the constitutional amendment process. To address this blind-spot, we present the first comprehensive account of the political take-up of recommendations for constitutional amendment made by Ireland’s deliberative mini-publics. We show that of 28 discrete recommendations, only three resulted in constitutional amendment. Recommendations were much more likely to lead to constitutional amendments if (a) they responded to real points of political disagreement where there was already some public interest in constitutional change, and (b) they did not contradict deep-seated commitments of legislative majorities. The best explanation for this record, we suggest, lies in the role that constitutional amendment processes play in the mediation of political disagreement. It is not merely the case that constitutional amendment procedures underwrite the stability of other constitutional processes; the impetus for constitutional amendment is generated through ordinary constitutional processes, with the support of a legislative majority required for constitutional change. This connects constitutional amendment with the other components of the constitutional framework for the mediation of disagreement: legislation and judicial decision-making. As such, assessments of impact must specify what role a deliberative mini-public played over and above general political attitudes.

Constitutional replacement doctrine

The so called 'constitutional replacement doctrine' is a case-law doctrine of the India Supreme Court and the Colombia Constitutional Court, but also a scholarly one. This doctrine differentiates between constitutional amendment and constitutional replacement in order to protect what are considered the constitution's essential elements (basic structure). This doctrine justifies the power of the courts to review the substance of constitutional amendments and so to prevent constitutional amendment power from changing the constitution's essence, even when there are no expressed substantial limitations upon it and it complies with the constitutional amendment procedure. This paper critically analyses that doctrine, because it is based on a material understanding of the constitution that weakens its normative value.

Constitutional replacement doctrine

The so called 'constitutional replacement doctrine' is a case-law doctrine of the India Supreme Court and the Colombia Constitutional Court, but also a scholarly one. This doctrine differentiates between constitutional amendment and constitutional replacement in order to protect what are considered the constitution's essential elements (basic structure). This doctrine justifies the power of the courts to review the substance of constitutional amendments and so to prevent constitutional amendment power from changing the constitution's essence, even when there are no expressed substantial limitations upon it and it complies with the constitutional amendment procedure. This paper critically analyses that doctrine, because it is based on a material understanding of the constitution that weakens its normative value.

The Constitution of Canada as Supreme Law: A New Definition

Not only is there no clear answer in Canadian law as to what the 'supreme law' of Canada comprises, but no agreement on how to find that answer. In this short paper, we claim to solve the problem by proposing a new, workable, definition of the Canadian Constitution as supreme law that discards the document list approach of subsection 52(2), Constitution Act 1982, in favour of one that, through subsection 52(3), is based on the constitutional amendment procedure of Part V, which relates to provisions.

The Constitution of Canada as Supreme Law: A New Definition

Not only is there no clear answer in Canadian law as to what the 'supreme law' of Canada comprises, but no agreement on how to find that answer. In this short paper, we claim to solve the problem by proposing a new, workable, definition of the Canadian Constitution as supreme law that discards the document list approach of subsection 52(2), Constitution Act 1982, in favour of one that, through subsection 52(3), is based on the constitutional amendment procedure of Part V, which relates to provisions.

Understanding Constitutional Amendments in Mexico: Perpetuum mobile Constitution

In spite of being formally rigid, the Mexican Constitution is frequently amended. In this article, I analyze the constitutional amendment procedure in order to understand the causes, consequences and potential solutions of the accelerated rhythm of constitutional amendments in Mexico.

Rigidity Measures. On Constitutional Amendment

Findings in the literature on the explanatory power of constitutional rigidity tend to be inconsistent and at times even contradictory. One possible explanation for this state of affairs is that methods for operationalizing and measuring rigidity levels are still somewhat intuitive and un-precise. Classifying and categorizing constitutional amendment procedures and strictly applying a view of rigidity as a constitutional variable, an attempt is made here to design a rigidity grading that runs from a zero point on a scale that makes use of half-point as well as full-point intervals. Observations on methods for assessing patterns of legislative and popular sovereignty as well as combinations of these sovereignty types are followed by observations on varieties of double decision rules. Illustrations of the multitude of amendment politics are inserted frequently in the presentation, as are extracts from relevant sections of constitutional law in different countries.

Tracing constitutional changes in Slovakia between 2008–2016

The paper analyses the constitutional revision process in Slovakia taking into account recent constitutional changes that have occurred since the financial crisis of 2008. The first part describes the forms of constitutional amendment procedure in theory and practice. The second part is devoted to the substantive and detailed examination of direct amendments taking place from 2008 onwards equipped with political situation that influenced each revision. Interestingly, during the period of study, all amendments but one were adopted as a response to the crises but all of them were connected to the political questions of a given moment. The amendments are completely in the hands of politicians and have become a tool to “show off” with little attention on possible constitutional damage. The regime of constitutional change in Slovakia is an ample illustration of political constitutionalism in practice.

The Practice of Informal Changes to the Ethiopian Constitution in the Course of Application

Given the generality of a constitution, it requires amendments in order to enable it to cope up with the socio-economic and political dynamics. As a result, formal constitutional amendment procedures have remained vital mechanisms in this regard. However, the rigidity of formal constitutional amendment procedures and/or the political context of a country have often kept constitutions static and frequently induce politicians to look for alternatives. Informal constitutional amendment mechanisms are thus designed in response to the difficulty of formally amending the constitution. In this sense, the role of non-constitutional mechanisms in the alteration of a constitution is essential. The FDRE Constitution encompasses a constitutional provision that spells out how the Constitution can be amended. However, there has not yet been a single formal constitutional amendment. This article examines instances of actual but unwritten constitutional changes in the course of application that have been occurring in Ethiopia for which formal constitutional amendment cannot account for. These include constitutional changes through constitutional interpretation, or by legislation. The article contends that there are time-honoured practices that regulate and continue to guide the course of the Ethiopian federal state in contradiction to the Constitution. Equally important, party structure also influences the federal distribution of power. Key terms FDRE Constitution, informal constitutional changes, constitutional amendment, constitutional interpretation, political custom, law enforcement, Ethiopia.