Entrenched clause

An entrenched clause or entrenchment clause of a constitution is a provision that makes certain amendments either more difficult or impossible to pass. Overriding an entrenched clause may require a supermajority, a referendum, or the consent of the minority party. The term eternity clause is used in a similar manner in the constitutions of Brazil, the Czech Republic,^[1] Germany, Greece,^[2] India,^[3] Iran, Italy,^[4] Morocco,^[5] Norway,^[4] and Turkey, but specifically applies to an entrenched clause that can never be overridden. However, if a constitution provides for a mechanism of its own abolition or replacement, like the German Basic Law does in Article 146, this by necessity provides a "back door" for getting rid of the "eternity clause", too.^{[citation needed]}

Any amendment to a constitution that would not satisfy the prerequisites enshrined in a valid entrenched clause would lead to so-called "unconstitutional constitutional law"—that is, an amendment to constitutional law text that appears constitutional by its form, albeit unconstitutional due to the procedure used to enact it or due to the content of its provisions.

Entrenched clauses are, in some cases, justified as protecting the rights of a minority from the dangers of majoritarianism. In other cases, the objective may be to prevent amendments to the constitution that would pervert the fundamental principles it enshrines. However, entrenched clauses are often challenged by their opponents as being undemocratic.

Algeria

According to the Algerian Constitution of 2016, there are clauses about the numbers and the duration of the presidential term.

Australia

As Australian Parliaments have inherited the British principle of parliamentary sovereignty, they may not entrench themselves by a regular act. Therefore, the entrenchment of the national flag in the Flags Act of 1953 is without force as the entrenchment clause could be removed (through normal legislative amendment) by later parliaments.^[6]

The Commonwealth Constitution is entrenched as it may only be amended by referendum; the amendment must gain the support of a majority of Australian voters nationwide, plus a majority of voters in a majority of states. These provisions are specified in section 128. The Imperial Parliament's power to amend it in Australian law was limited by the Statute of Westminster Adoption Act 1942 and terminated by the Australia Act 1986.

State laws respecting the constitution, powers or procedure of the parliament of a state need to follow any restrictions specified in state law on such acts, by virtue of section 6 of the Australia Act. This power does not extend to the whole constitution of the state, and the Parliament of Queensland has ignored entrenchments in amending its constitution.^[7] Consequently, it is possible that the entrenchment clauses are unentrenchable, preventing state law from having effectively entrenching clauses.^[7]

Brazil

Entrenched clauses of the Constitution of Brazil are listed in Article 60, Paragraph 4:^[8]

No proposal of amendment shall be considered which is aimed at abolishing:

1. the federative form of State;
2. the direct, secret, universal and periodic vote;
3. the separation of the Government Powers;
4. individual rights and guarantees.

There are other clauses that implicitly cannot be amended, mostly because they are dependent of the subjects above.

Bosnia and Herzegovina

Article X of the Constitution of Bosnia and Herzegovina, defining the amendment procedure, provides in paragraph 2 that the rights and freedoms as established in Article II of the Constitution may not be eliminated or diminished, and that the paragraph 2 itself may not be altered.

Canada

The amendment formula for the Constitution of Canada (sections 38-49 of the Constitution Act, 1982) contains multiple levels of entrenchment, but the issues most firmly entrenched (which can only be changed by the federal government with the unanimous consent of all provinces) under section 41 are the monarchy, each province's minimum allocation of representatives in Parliament, English-French bilingualism, the composition of the Supreme Court of Canada, and section 41 itself.

Czech Republic

Article 9 of the Czech Constitution, which concerns supplementing and amending the Constitution, states that "the substantive requisites of the democratic, law-abiding State may not be amended". This provision was invoked in 2009 when the Constitutional Court of the Czech Republic struck down a Constitutional Act adopted to invoke a one-off early legislative election. The disputed Act was judged to be an individual decision in violation of then-effective constitutional procedure regulating early elections.

The Constitution also contains an explicit eternity clause whereby the Constitutional Court is the ultimate arbiter of the effect of European law on the Constitution.^[1]

Egypt

Article 226 of the Constitution of Egypt, defining the amendment procedure, ends with an entrenched clause stating that "In all cases, texts pertaining to the re-election of the president of the republic or the principles of freedom and equality stipulated in this Constitution may not be amended, unless the amendment brings more guarantees."^[9]

This clause failed to block the 2019 amendments that replaced "a president cannot be re-elected except once" with "a president cannot serve more than two consecutive terms". The article also failed to block a new article from being added that excludes president Abdel Fattah el-Sisi from the two consecutive terms constraint, enabling him to run for a third term. Also, the duration of the term was increased from four years to six years.^[10]

Estonia

Article 1 of Estonian Constitution states that "The independence and sovereignty of Estonia are timeless and inalienable." As part of Chapter 1 of the Constitution, this provision may only be changed by a referendum (and such a referendum could only be organized after obtaining a 3/5 supermajority in the parliament). This provision, however, does not prevent Estonia from being a member of the European Union and delegating some of its decision-making power to central EU institutions as long as "fundamental constitutional principles" are not breached (according to the special Constitution Amendment Act passed on a referendum in 2003).

France

The French Constitution states in Title XVI, Article 89, On Amendments to the Constitution, "The republican form of government shall not be the object of any amendment" thus forbidding the restoration of the monarchy or the empire.

Germany

The German eternity clause (German: Ewigkeitsklausel) is Article 79 paragraph (3) of the Basic Law for the Federal Republic of Germany (German: Grundgesetz). The eternity clause establishes that certain fundamental principles of Germany's democracy can never be removed, even by parliament.^[11] The fundamental principles, (i.e., "the basic principles" of Articles 1 and 20), are as follows:

• Duty of all state authority: "The dignity of man is inviolable. To respect and protect it is the duty of all state authority." (Article 1)
• Acknowledgement of human rights: "The German people therefore acknowledge inviolable and inalienable human rights as the basis of every community, of peace and of justice in the world." (Article 1 Paragraph 2)
• Directly enforceable law: "The following basic rights bind the legislature, the executive and judiciary as directly enforceable law." (Article 1 Paragraph 3)
• Republic (form of government): (Article 20 Paragraph 1)
• Federal state (Länder): (Article 20 Paragraph 1)
• Social state (welfare state): (Article 20 Paragraph 1)
• Sovereignty of the People: "All state authority emanates from the People." (Article 20 Paragraph 2)
• Democratic: "All state authority is exercised by the people by means of elections and voting and by specific legislative, executive and judicial organs." (Article 20 Paragraph 2)
• Rule of law (Rechtsstaat): "Legislation is subject to the constitutional order. The executive and judiciary are bound by the law." (Article 20 Paragraph 3)
• Separation of powers: "Specific legislative, executive and judicial organs", each "bound by the law". (Article 20 Paragraphs 2–3)

The original purpose of this eternity clause was to ensure that the establishment of any dictatorship in Germany would be clearly illegal; in legal practice the clause was used by plaintiffs at the Federal Constitutional Court challenging constitutional amendments that affected Articles 1, 10, 19, 101, and 103 regarding restrictions of legal recourse.^{[further explanation needed]} Although these basic principles are protected from being repealed, their particular expression may still be amended, such as to clarify, extend or refine an entrenched principle.

The Parlamentarischer Rat (Parliamentary Council) included the eternity clause in its Basic Law specifically to prevent a new "legal" pathway to a dictatorship as was the case in the Weimar Republic with the Enabling Act of 1933^[12] and Article 48 of the Weimar Constitution.

It is not lawful for any political party, any legislation or any national commitment to violate "the basic principles" of "this Basic Law" laid down in Articles 1 and 20. Furthermore, the only way that Articles 1 and 20 can be removed is through Article 146, which requires "a constitution that is adopted by a free decision of the German People".^[12] So long as the principles of Articles 1 and 20 are retained, they may be amended (as Article 20 has indeed been amended to establish a 'right of resistance'), but the full protection of the eternity clause does not extend to such amendments.

Unlike the Weimar Constitution, which made human rights only an objective, the eternity clause and Articles 1 and 20 make specific demands of "all state authority" regarding "human rights" (that is, "the basic rights" guaranteed in "this Basic Law") and have established specific legislative, executive and judicial organs in "the constitutional order" of "this Basic Law", each with separate functions bound by the law. These are "the basic principles" of the democratic rule of law (German: Rechtsstaat) and the separation of powers, which are principles endorsed by three United Nations resolutions.^[13][vague]

See also: Liberal democratic basic order

Greece

The Greek eternity clause is Article 110 of the Greek Constitution. This article states that every article of the Constitution can be revised by the Parliament, with the exception of the fundamental ones, which establish Greece as a parliamentary republic and those of articles 2 paragraph 1, article 4 paragraphs 1, 4 and 7, article 5 paragraphs 1 and 3, article 13 paragraph 1 and article 26.^[14] These fundamental articles include:^[15]

• Republic (form of government): "The form of government of Greece is that of a parliamentary republic." Art. 1 Para. (1);
• Sovereignty of the people: "Popular sovereignty is the foundation of government." Art. 1 Para. (2);
• Democracy: "All powers derive from the People and exist for the People and the Nation; they shall be exercised as specified by the Constitution." Art. 1 Para. (3);
• Duty of all state authority: "The dignity of man is inviolable. To respect and protect it is the duty of all state authority." Art. 2 Para. (1);
• Rule of law: "Every Greek is equal before the law." Art. 4 Para. (1);
• Public functions: "Only Greek citizens shall be eligible for public service, except as otherwise provided by special laws." Art. 4 Para (4);
• Titles of nobility: "Titles of nobility or distinction are neither conferred upon nor recognized in Greek citizens." Art. 4 Para (7);
• Acknowledgement of free personality: "All people shall have the right to develop freely their personality and to participate in the social, economic and political life of the country, insofar as they do not infringe the rights of others or violate the Constitution and the good usages." Art. 5 Para (1);
• Personal liberty: "Personal liberty is inviolable. No one shall be prosecuted, arrested, imprisoned or otherwise confined except when and as the law provides." Art. 5 Para. (3);
• Freedom of religion: "Freedom of religious conscience is inviolable. The enjoyment of civil rights and liberties does not depend on the individual's religious beliefs." Art. 13 Para. (1)
• Separation of powers: "Specific legislative, executive and judicial organs", Art. 26.

Honduras

The Constitution of Honduras has an article stating that the article itself and certain other articles cannot be changed in any circumstances. Article 374 of the Honduras Constitution asserts this unmodifiability, stating, "It is not possible to reform, in any case, the preceding article, the present article, the constitutional articles referring to the form of government, to the national territory, to the presidential period, the prohibition to serve again as President of the Republic, the citizen who has performed under any title in consequence of which she/he cannot be President of the Republic in the subsequent period."^[16] This unmodifiable article has played an important role in the 2009 Honduran constitutional crisis.

India

The Supreme Court has developed the basic structure doctrine which holds that certain features of the constitution are fundamental in nature and cannot be modified through parliamentary amendment. The Supreme Court has yet to clearly delimit which, if any, provisions constitute the components of the basic structure.

Indonesia

Article 37 on Chapter 16 of the Constitution of Indonesia governs the constitutional amendment procedure, yet it also specifies that the status of Indonesia as a unitary state is unmodifiable. The Ministry of Home Affairs, the Ministry of Defense as well as the Ministry of Foreign Affairs is also stated within the Constitution to not be dissolvable.

Iran

The final Article of the Constitution of the Islamic Republic of Iran, Art. 177, ensures that particular aspects of the Constitution are unalterable. These include the Islamic character of government and laws, the objectives of the republic, the democratic character of the government, "the absolute wilayat al-'amr and the leadership of the Ummah", the administration of the country by referendum, and the official religion of Islam.^{[17][unreliable source?]}

Ireland

The Constitution of the Irish Free State was required in parts to be consistent with the 1922 Anglo-Irish Treaty, including the Oath of Allegiance and the Governor-General. The checks to protect this were removed by, for example, the Irish taking control of advice to the Governor-General, and when the Senate proved obstructive, its abolition.

In debate surround 2018 relaxation of abortion laws there were proposals to entrench certain aspects of the legislation, which was deemed unconstitutional.^[18] An attempt to overturn the 34th Amendement to the constitution on the basis that amendments were impermissible if they contradicted other provisions of the constitution was rejected by the Court of Appeal.^[19]

Italy

Article 139 of the Constitution of Italy, which came into effect in 1948, provides that the republican form of government shall not be a matter for constitutional amendment.

Malaysia

Another example of entrenchment would be the entrenching of portions of the Malaysian Constitution related to the Malaysian social contract, which specifies that citizenship be granted to the substantial Chinese and Indian immigrant populations in return for the recognition of a special position for the indigenous Malay majority. The Constitution did not initially contain an entrenched clause; indeed, one of the articles later entrenched, Article 153, was initially intended to be subject to a sunset clause. However, after the May 13 incident of racial rioting in 1969, Parliament passed the Constitution (Amendment) Act 1971. The Act permitted criminalisation of the questioning of Articles 152, 153, 181, and Part III of the Constitution.

Article 152 designates the Malay language as the national language of Malaysia; Article 153 grants the Malays special privileges; Article 181 covers the position of the Malay rulers; and Part III deals with matters of citizenship. The restrictions, which even covered Members of Parliament, made the repeal of these sections of the Constitution unamendable or repealable by de facto; however, to entrench them further, the Act also amended Article 159(5), which covers Constitutional amendments, to prohibit the amending of the aforementioned Articles, as well as Article 159(5), without the consent of the Conference of Rulers — a non-elected body comprising the rulers of the Malay states and the governors of the other states.^[20]

Morocco

In the Constitution of Morocco, eternity clauses exist that ensure certain provisions cannot be amended, including the role of Islam in the nation's law, and the role of the King of Morocco in law.^[5]

New Zealand

Section 268 of the Electoral Act (part of the Constitution of New Zealand) declares that the law governing the maximum term of Parliament, along with certain provisions of the Electoral Act relating to the redistribution of electoral boundaries, the voting age, and the secret ballot, may only be altered either by three-quarters of the entire membership of the House of Representatives, or by a majority of valid votes in a popular referendum.

However, Section 268 is not itself protected by this provision, so a government could legally repeal Section 268 and go on to alter the entrenched portions of law, both with a simple majority in Parliament.^[21][22]

Portugal

In the Constitution of Portugal, an eternity clause exists in the form of article 288. Titled Material limits on revision, it provides that the following can never be removed through amendment:

• National independence and the unity of the state;
• The republican form of government;
• The separation between church and state;
• Citizens’ rights, freedoms and guarantees;
• The rights of workers, workers’ committees and trade unions;
• The coexistence of the public, private and cooperative and social sectors of ownership of the means of production;
• The existence of economic plans, within the framework of a mixed economy;
• The appointment of the elected officeholders of the entities that exercise sovereignty, of the organs of the autonomous regions and of local government organs by universal, direct, secret and periodic suffrage; and the proportional representation system;
• Plural expression and political organisation, including political parties, and the right of democratic opposition;
• The separation and interdependence of the entities that exercise sovereignty;
• The subjection of legal norms to review of their positive constitutionality and of their unconstitutionality by omission;
• The independence of the courts;
• The autonomy of local authorities;
• The political and administrative autonomy of the Azores and Madeira archipelagos.

South Africa

There are several examples of entrenched clauses that ultimately failed in their objectives, since their protections were undermined in unintended ways. For instance, the South Africa Act, the initial constitution of the Union of South Africa, contained entrenchment clauses protecting voting rights in the Cape Province, including those of some Coloureds, that required two-thirds of a joint session of parliament to be repealed. The Coloureds, however, later lost their voting rights after the Government restructured the Senate and packed it with its sympathisers so that they were able to achieve said supermajority in what is known as the Coloured vote constitutional crisis.

Spain

Most of the body of the Constitution of Spain can be modified by a three-fifths majority of both chambers of the Cortes Generales, or an absolute majority of the Senate and a two-thirds majority of the Congress of Deputies if the first method of approval fails.

However, modifications of the Preliminary Title (sovereignty and constitutional principles), the First Section of the First Title (fundamental rights and liberties of the Spaniards), or the Second Title (the Monarchy), as well as drafting a full new Constitution replacing the current, would require a two-thirds majority of both chambers, an immediate new general election, a two-thirds majority of the newly elected chambers, and a final referendum.

Constitutional amendments cannot be introduced during wartime or state of emergency.^[23]

Tunisia

The Tunisian Constitution of 2014 prohibits amending the constitution to change the duration of the presidential term or the maximum number of terms an individual can serve.^[24]

Turkey

Article 4 of Part 1 of the Constitution of Turkey states that the "provision of Article 1 of the Constitution establishing the form of the state as a Republic, the provisions in Article 2 on the characteristics of the Republic, and the provision of Article 3 shall not be amended, nor shall their amendment be proposed."

United Kingdom

The doctrine of parliamentary supremacy holds that Parliament may pass any law it wishes, with the exception that it cannot bind its successors (or be limited by its predecessors). Moreover, the UK's constitution is uncodified, being contained instead in informal conventions, standing orders of the two Houses of Parliament, and ordinary legislation (in particular Acts of Parliament). Therefore, the constitution is unentrenched as previous legislation can be amended by the passing of statute, requiring a simple majority vote in the House of Commons.

Notions of entrenchment have emerged in consideration of a number of constitutional statutes, including the Parliament Acts 1911 and 1949. (See R (Jackson) v Attorney General [2005] UKHL 56.)^[25]

Andrew Blick, Senior Lecturer in Politics at King's College London, argues that the use of a supermajority requirement for the House of Commons in the Fixed-term Parliaments Act 2011 represents a move towards entrenched clauses in the UK Constitution.^[26] Nevertheless, after failing to secure the required supermajority for an election in 2019, the government passed the Early Parliamentary General Election Act 2019, which only required a simple majority, to override the act and call an early general election. The Fixed-term Parliaments Act 2011 was subsequently repealed and replaced by the Dissolution and Calling of Parliament Act 2022.

United States

Article V of the United States Constitution temporarily shielded certain clauses in Article I from being amended. The first clause in Section 9, which prevented Congress from passing any law that would restrict the importation of slaves prior to 1808, and the fourth clause in that same section, a declaration that direct taxes must be apportioned according to the state populations, were explicitly shielded from Constitutional amendment prior to 1808.^[27]

Article V also shields the first clause of Article I, Section 3, which provides for equal representation of the states in the United States Senate, from being amended.^[28] This has been interpreted to require unanimous ratification of any amendment altering the composition of the Senate.^[29] However, the text of the clause would indicate that the size of the Senate could be changed by an ordinary amendment if each state continued to have equal representation. Alternatively, Article V theoretically could be amended to remove such an entrenched clause designation, and then the clause could be amended itself.

The Crittenden Compromise and Corwin Amendment, both proposed in the months leading up to the Civil War but never passed, would have enshrined slavery in the Constitution and prevented Congress from interfering with it.

Company law

Provisions may also be entrenched in the constitutions of corporate bodies. An example is in the memoranda and articles of a company limited by guarantee, in which the principles of common ownership may be entrenched. This practice can make it almost impossible for the company's members to dissolve the company and distribute its assets amongst them. This idea has more recently been extended in the UK through the invention of the community interest company (CIC), which incorporates an asset lock.^[30] Other companies in the UK may make provision for entrenchment of certain articles so that, for example, the specified articles may only be amended or repealed by agreement of all the members of the company or by a court order.^[31] In India there is similar provision in section 5 of the Companies Act 2013.^[32]

See also

• Basic structure doctrine
• Peremptory norm
• Rigid constitution

References

1. Kyriaki Topidi and Alexander H. E. Morawa (2010). Constitutional Evolution in Central and Eastern Europe (Studies in Modern Law and Policy). p. 105. ISBN 978-1409403272.
2. The official English language translation of the Greek Constitution as of May 27, 2008, Article 110 §1, p. 124, source: Hellenic Parliament, "The provisions of the Constitution shall be subject to revision with the exception of those which determine the form of government as a Parliamentary Republic and those of articles 2 paragraph 1, 4 paragraphs 1, 4 and 7 , 5 paragraphs 1 and 3, 13 paragraph 1, and 26."
3. "Changes like Brexit need a super-majority". Times of India Blog. 2016-07-03. Retrieved 2020-08-31.
4. Joel Colón-Ríos (2012). Weak Constitutionalism: Democratic Legitimacy and the Question of Constituent Power. p. 67. ISBN 978-0415671903.
5. Gerhard Robbers (2006). Encyclopedia of World Constitutions. p. 626. ISBN 978-0816060788.
6. Speech by the Hon. David Jull, MP – Minister for Administrative Services 2001 [1] 2014-02-04 at the Wayback Machine
7. Anne Twomey. Manner and Form
8. pt:Constituição brasileira de 1988
9. The Constitution of Egypt 2014. p. 62.
10. "Before vote: Know about powers granted to president by constitutional amendments". 16 April 2019.
11. "Defending German Democracy". National Review. 2 July 2012.
12. "The Euro Crisis: Challenges to the ESM Treaty and the Fiscal Compact Treaty before the German Constitutional Court". Institute of International and European Affairs. 30 August 2012.
13. "United Nations and the Rule of Law". Un.org.
14. "Constitution of Greece in English" (PDF). Hellenic Parliament.
15. "The Constitution of Greece (2008)" (PDF). Hellenic Parliament. Retrieved 17 December 2020.
16. "Republic of Honduras: Political Constitution of 1982 through 2005 reforms; Article 374", Political Database of the Americas (in Spanish), Georgetown University
17. "Chapter XIV: Revision of the Constitution". The Constitution of Islamic Republic of Iran. Iran Chamber Society. Retrieved 7 July 2020.
18. Bardon, Sarah; Clarke, Vivienne; O'Halloran, Marie (26 March 2018). "Varadkar rules out Coveney's two-third majority plan on abortion". The Irish Times. Retrieved 28 March 2018.
19. "Appeal court clears last legal obstacle to same-sex marriage". The Irish Times.
20. Khoo, Boo Teik (1995). Paradoxes of Mahathirism, pp. 104–106. Oxford University Press. ISBN 967-65-3094-8.
21. Elkind, Jerome B. (1987). "A New Look at Entrenchment". The Modern Law Review. 50 (2): 158–175. doi:10.1111/j.1468-2230.1987.tb02570.x. ISSN 0026-7961. JSTOR 1096137.
22. "Chapter 2 The Basis of Parliamentary Procedure - New Zealand Parliament". www.parliament.nz. Retrieved 2019-05-20.
23. Congress of Deputies. Title X. Constitutional amendment.
24. UNDP and International IDEA, ed. (26 January 2014). (PDF). Constitution.net. Article 75. Archived from the original (PDF) on 23 September 2015. Retrieved 17 July 2019.
25. Young, Alison L. (2006). "Hunting Sovereignty: Jackson v Her Majesty's Attorney-General". Public Law. Sweet & Maxwell. 2006 (2): 187–196. ISSN 0033-3565.
26. Blick, Andrew (January 2016). "Constitutional Implications of the Fixed-Term Parliaments Act 2011". Parliamentary Affairs. 69 (1): 19–35. doi:10.1093/pa/gsv004. The UK has no written constitution. Yet entrenchment in some forms has had a part in UK constitutional conceptions. Moreover, in recent times this role has grown. Some precedent for supermajorities, for instance, has appeared through the provision in section 2 of the Fixed-term Parliaments Act 2011 for early general elections, requiring support from two-thirds or more of MPs.
27. Spaulding, Matthew. "Essays on Article V: Prohibition on Amendment: Slave Trade". The Heritage Foundation.
28. Rossum, Ralph. "Essays on Article V: Prohibition on Amendment: Equal Suffrage in the Senate". The Heritage Foundation.
29. Gibson, Alan (2006-11-09). . Chico State Inside. Archived from the original on 2007-12-01. Retrieved 2021-01-21.
30. Companies (Audit, Investigations and Community Enterprise) Act 2004, part 2
31. Companies Act 2006, section 22
32. Provisions for Entrenchment in Articles of Association, accessed 20 September 2018

Further reading

• Schwartzberg, Melissa. . Retrieved November 6, 2006.
• Suber, Peter. Paradox of Self-Amendment. Retrieved February 1, 2007.

External links

• by Dr. Michael Hein, Katapult magazine, 4 May 2015.