Part I Comparative Constitutional Unamendability, 1 Explicit Constitutional Unamendability
1 Explicit Constitutional Unamendability
The amendment process is a method for reconciling the tension between stability and flexibility. ‘A state without the means of some change’, Edmund Burke wrote, ‘is without the means of its conservation’.1 One way in which constitution-makers balance stability and flexibility is by separating the constitutional subjects so that the majority of ordinary provisions require a simple amendment procedure, while a minority of provisions that are deemed more fundamental or protection-worthy enjoy a special protection.2 The latter are more difficult to amend or are even considered unamendable, that is, their amendment is prohibited.3 This chapter focuses on the unamendable cases and aims to conceptualize unamendable provisions and explain their characters. In order to do so, explicit substantive limitations on constitutional amendments that were and are stipulated in 212 former and current written national constitutions were collected (see Appendix).4 Thus, this chapter unavoidably focuses on constitutional texts. This approach surely has disadvantages. Apart from telling only a portion of the story, it treats all constitutions equally regardless of the period or environment in which they were enacted and the fact that they have not all enjoyed or do not currently enjoy the same level of authority and effectiveness. This does not endanger this book’s limited enterprise, however, although formulating a general conceptualization surely carries with it certain drawbacks relating to its minimal intention.5 Not only does the constitutional text itself matter for both practical and symbolic reasons,6 but the exercise of collecting of worldwide constitutions is valuable for the development of a general theory which conceptualizes and explains the broad and diverse types of unamendable provisions. Explicit unamendability demands careful attention both because it has become an important element of modern constitutional design and because it currently covers a wide range of topics, as unamendable provisions have grown more detailed in recent decades.
The chapter is developed as follows: the first section examines unamendable provisions by reviewing their origins and supplying a general overview of this global constitutional phenomenon, thereby demonstrating that unamendability has become a prominent feature of modern constitutional design. The chapter then describes the structure and content of unamendable provisions, seeking any content-based or material links among them. Finally, it analyses the characteristics of unamendable provisions. It argues that unamendable provisions have different characteristics of preservation, transformation, aspiration, conflict, and bricolage, all carrying both expressive and functional importance for creating and maintaining constitutional identity.
John Locke, in writing ‘The Fundamental Constitution’ of the colony of Carolina in 1669, provided that it ‘shall be and remain the sacred and unalterable form and rule of government of Carolina forever’.7 Treatment of the entire constitution as unamendable derives either from ascribing it to a super-human source or from the constitution-maker being afflicted with exceptional arrogance and belief that he or she has achieved the apex of perfection.8 Nowadays, such ‘delusions of unamendable grandeur’ no longer exist.9 However, whereas completely rigid constitutions are presently uncommon, in many constitutions the amendment of certain provisions or principles is strictly prohibited.
In the literature, provisions that prohibit amending certain subjects are often referred to as ‘immutable’, ‘unchangeable’, ‘unalterable’, ‘irrevocable’, ‘perpetual’, or most commonly—drawing from the German term ewigkeitsgarantie—‘eternity clauses’,10 but the preferred term in this book is ‘unamendable’. The terminology should not be dismissed as mere semantics, as it bears normative implications. The other terms imply everlasting provisions, but this implication is inaccurate. As is claimed in this book, these provisions are neither eternal nor unchangeable. Even Locke’s ‘sacred and unalterable’ fundamental constitution was largely ignored by 1700. While unamendable provisions serve as a mechanism for limiting the amendment power, they do not—and cannot—limit the primary constituent power (see Chapter 4). Even unamendable provisions are subject to changes introduced by extra-constitutional forces. Moreover, their content can also change through judicial interpretation.
Unamendable provisions reflect the idea that certain constitutional subjects ought to be protected from alteration. They function as a ‘barrier of change’ (veränderungssperre).11 Different motives for the creation of unamendable provisions can be suggested. First, each polity wants to preserve its own existence and identity. Presumably, constitution-makers regarded the content of specific provisions to be so pivotal to the essence of the constitution or to the state’s existence and identity that they should endure for generations.12 Unamendability is meant to provide ‘hermetic protection’ and block even the constitutional amendment process, thereby preventing violations of certain basic constitutive principles via the majoritarian procedure. Thus it reflects the idea that a nation’s identity and constitutive narrative should not be subjugated to the majority’s caprices.13 Second, constitution-drafters often design constitutional provisions so as to work exactly against the features of a state’s tradition and culture that would probably cause damage through the ordinary political process.14 Hence, some values that are material to the constitutional order and might be considered as open to abuse, especially in light of prior experience, are deemed unamendable. Arnold Brecht, writing in the context of post-Second World War Germany, suggested that:
For preventing the possibility the majority rule will be abused to authorize barbaric measure … it would be advisable for the new German constitution (and for any other democratic constitution to be enacted in the future) to contain certain sacrosanct principles and standards [which] … could not be impaired even by constitutional amendments. They should include fundamental principles regarding respect for the dignity of man, the prohibition of cruelties and tortures, the preclusion of ex post facto laws, equality before the law, and the democratic principle that the law itself cannot validly discriminate for reasons of faith or race.15
Unamendable provisions, therefore, reflect a kind of distrust of those who wield the amendment power.
Third, constitution-makers are motivated by their personal desires and beliefs.16 They also have individual and institutional interests in seeing their power protected. Unamendable provisions can function as a useful tool for political actors to preserve power asymmetry.17 Last, constitution-makers have an interest in protecting certain constitutional subjects that threaten to tear society apart if opened to political debate. The functional and expressive characteristics of unamendable provisions are analysed and elaborated on below.
It is said that after implementing extensive reforms, Lycurgus, Sparta’s great lawgiver, administered an oath that his laws would be observed without alterations until his return from a journey to the oracle. After the oracle reassured him that his laws were good for the people, he sent her words to Sparta and sacrificed his life to perpetuate his laws, which indeed lasted for 500 years.18 The contemporary relevance of this ancient story is due not only to the idea of immutable laws, but also to the lawmaker’s motives. Just as Lycurgus wanted his laws to last forever, since he believed they were good for his people, so too modern unamendability largely reflects a kind of paternalistic idea according to which constitution-makers know what is best for the people and enshrine those well-esteemed principles or institutions. Surely, the environment in which constitutions emerge profoundly influences the character and composition of any unamendable provision included in the text. This chapter shows, however, that there are similarities in the content, aims, and characteristics of many of the world’s unamendable provisions.
Origins and Development
The idea of entrenched laws is not novel.19 In Hungary, Act VIII of 1741 on the liberties and privileges of noblemen was declared to be unamendable.20 Another notable example is the Pennsylvania Charter of Privileges of 1701, which declared in Article VIII that:
Because the Happiness of Mankind depends so much upon the Enjoying of Liberty of their Consciences as aforesaid, I do hereby solemnly declare, promise and grant, for me, my Heirs and Assigns, That the First Article of this Charter relating to Liberty of Conscience, and every Part and Clause therein, according to the true Intent and Meaning thereof, shall be kept and remain, without any Alteration, inviolably for ever.21
This unamendability, Gerhard Casper remarks, ‘posed the ultimate conundrum of constitutionalism—the possibility of unconstitutional constitutional amendments’.22 The modern constitutionalist form of unamendability developed further at the end of the eighteenth century. According to the 1776 Constitution of New Jersey, members of the Legislative Council or House of Assembly had to take an oath not to ‘annul or repeal’ the provisions for annual elections, the articles opposing church establishment, the conferral of equal civil rights on all Protestants, and trial by jury (Art. 23). The 1776 Delaware Constitution prohibited amendments to the declaration of rights, the articles establishing the state’s name, the bicameral legislature, the legislature’s power over its own officers and members, the ban on slave importation, and the establishment of any one religious sect (Art. 30).23 Explicit unamendability was included in Article V of the US Federal Constitution, which originally forbade abolition of the African slave trade prior to 1808, and prohibits, without time limits, the deprivation of a state’s equal representation in the Senate without its consent.24
In France, the 1791 Constitution’s Preamble stated that the National Assembly ‘abolishes irrevocably the institutions which were injurious to liberty and equality of rights’. Moreover, Title VII, section 7 stated that the members of the Assembly of Revision individually take an oath to maintain the constitution with all their power. The terminology of ‘irrevocability’ and ‘maintenance’ implies perpetuity. In 1798, the Constitution of the Swiss Helvetic Republic, imposed by the French and based on the French revolutionary model,25 declared that ‘the form of government, whatever modifications it may undergo, shall at all times be a representative democracy’ (Art. 2).26 Yet by 1884, explicit unamendability had made its first appearance in a French constitution. On 14 August of that year, the French Parliament assembled as the National Assembly in order to revise the constitutional law of 1875, which represented the Third Republic and marked the end of monarchism and Bonapartism.27 By then, it was clear that France desired a republican form of government.28 The constitutional law of 1875 was then amended, adding the following to Article 8(3): ‘The republican form of government cannot be made the subject of a proposition for revision’,29 in order to ‘prevent the destruction of the republic by constitutional means’.30 This formulation repeated itself in the Constitution of 1946 (Art. 95) and, with different wording, in the Constitution of 1958: ‘The republican form of government shall not be the object of any amendment’ (Art. 89).
Another early constitution which included an unamendable provision is the Constitution of Norway of 1814, which stipulated that amendments ‘must never … contradict the principles embodied in this Constitution, but solely relate to modifications of particular provisions which do not alter the spirit of the Constitution’ (Art. 112).31 The idea of shielding certain subjects from amendments enjoyed growing popularity both in America and in Europe. During the first half of the nineteenth century, Latin American states in particular, influenced by ideas from the American and French revolutions, widely used unamendable provisions in order to protect certain principles. The Mexican Constitution of 1824 stated that ‘[t]he Religion of the Mexican Nation is, and shall be perpetually, the Apostolical Roman Catholic’ (Art. 3), and that the provisions which establish the ‘Liberty and Independence of the Mexican Nation, its Religion, Form of Government, Liberty of the Press, and Division of the Supreme Power of the Confederation, and of the States, shall never be reformed’ (Art. 171). It was later suggested that this provision was inserted into the constitution in order to guard against ‘popular levity and legislative caprice’.32 The technique of prohibiting the amendment of certain state features, such as the form of government, separation of powers, and state religion, spread like a fire in a thistle field: the Constitution of Venezuela of 1830 protected the form of government, and the Peruvian Constitution of 1839 (Art. 183), Ecuador’s Constitution of 1843 (Art. 110), the Bolivian Constitution of 1848 (Art. 91), Honduras’ Constitution of 1848 (Art. 91), the Dominican Republic’s Constitution of 1865 (Art. 139), and El Salvador’s Constitution of 1886 (Art. 148) have all explicitly limited the amendment of certain constitutional subjects.
Claude Klein was correct to claim that ‘the idea of protecting the regime through a limitation of the amendment power had great successes’,33 at least in the sense that explicit unamendability has become a popular constitutional design that crosses continents and different legal systems, as the author’s examination of the 742 world constitutions from 1789 to 2015 demonstrates. In the first wave of constitutionalism, between 1789 and 1944, only 17 per cent of world constitutions enacted in this period included unamendable provisions (52 out of 306), whereas in the second wave of constitutionalism, between 1945 and 1988, 27 per cent of world constitutions enacted in those years included such provisions (79 out of 287). Out of the constitutions which were enacted in the third wave of constitutionalism, between 1989 and 2015, already more than half (54 per cent) included unamendable provisions (81 out of 149). In total, out of the 742 constitutions that were examined, 212 constitutions (28 per cent) include or included unamendable provisions.34 It seems that, just as having a formal constitution virtually became a symbol of modernism following the American and French revolutions,35 so too in the aftermath of the Second World War did having an unamendable provision become a universal fashion.
Not only did unamendable provisions grow in number, they grew also in length, complexity, and detail. Before the Second World War, the average length of an unamendable provision was 29.4 words, but since the Second World War, the average number of words in an unamendable provision is 39.5. This could be explained by the fact that whereas unamendable provisions protected mainly the state’s form of government prior to the Second World War, after the war, with the new wave of constitutionalism and the emergence of new states, unamendable provisions were extended to protect many features of a democratic government, including fundamental rights and freedoms.36 Indeed, before the Second World War, only three constitutions included explicit limits on amending rights,37 while after it, nearly 30 per cent of unamendable provisions referred to basic rights. Perhaps the most famous example is Article 79(3) of the German Basic Law (1949). Article 79(3), written against the background of the experience of the Weimar Constitution, prohibits amendments affecting human dignity, the constitutional order, the division of the Federation into Länder, or basic institutional principles, describing Germany as a democratic and social federal state.38 The content of unamendable provisions is examined in the next section.
Examining Unamendable Provisions
Unamendable provisions limit the holder of the constitutional amendment power. They prohibit the holder from exercising its power with regard to certain constitutional subjects, either principles or institutions. They create a space in which that power is not permitted to enter and use different techniques for protecting constitutional subjects from amendments. The majority of constitutions explicitly protect certain constitutional subjects, while some refer specifically to certain provisions, prohibiting any amendments to them in particular.39 Others combine these two approaches to unamendability.40 Albeit rarely, some constitutions do not protect specific constitutional subjects from amendments, but rather protect a more general ‘spirit of the constitution’,41 ‘spirit of the preamble’,42 ‘fundamental structure of the constitution’,43 or ‘nature and constituent elements of the state’.44 The formulation of unamendability in the form of rules that demand strict compliance or principles that are more generalized guidelines might carry decisive importance for its enforcement and application (see Chapter 8).
Most unamendable provisions are located within the amendment provision, but unamendability can also appear as an independent provision45 or can be inferred from a provision declaring the subject’s ‘eternal’ character.46 Moreover, provisions that stipulate extraordinary conditions for their amendment may also be regarded as unamendable. For example, Iran’s ‘Supplementary Fundamental Laws’ of 1907 specified that Article 2, stating generally that laws must never be contrary to the sacred precepts of Islam, ‘shall continue unchanged until the appearance of His Holiness the Proof of the Age (may God hasten his glad Advent!)’,47 thus requiring the intervention of a super-human factor, namely the advent of the Twelfth Imam, in order to allow its amendment. Similarly, Article V of the US Constitution, according to which ‘no State, without its Consent, shall be deprived of its equal Suffrage in the Senate’, seems to be a de facto unamendable provision, as it is hard to imagine a state giving its consent for such an act.
The act that is prohibited by unamendable provisions varies among different constitutions. While most constitutions simply prohibit ‘amending’ or ‘revising’ certain constitutional subjects, some constitutions state that amendments must ‘respect’ or ‘safeguard’ certain constitutional subjects.48 Often, the prohibited act is not ‘amending’ certain subjects, but rather the mere ‘proposal’ of amendments.49 Whereas the ultimate result of these two limitations seems similar, presumably the latter limitation positions the barrier to the prohibited change at an earlier phase than the actual act of amendment, that being at the beginning of the political process, so that the proposed change cannot even be debated. A provision prohibiting a proposal to amend certain subjects seems more like a directive to the amending authority that hinders a court’s intervention, as it would necessitate judicial intervention at an early stage of the political process, often within inter-parliamentary proceedings.
The content of explicit unamendability varies, but despite some minor exceptions, one can identify several common protected components.50 The first notable protected group is the form and system of government. More than 100 constitutions protect the ‘republican’ form of government. A ‘monarchical’ form of government is also protected,51 as well as ‘amiri’,52 ‘a crowned democracy’,53 ‘constitutional monarchy’, and ‘a democratic regime of government with king as head of the State’.54
The second notable protected group is the state’s political or governmental structure. Some constitutions explicitly protect the state’s federal structure,55 the equality of representation of states in the Senate,56 the unitary structure,57 the bicameral system,58 or local autonomy.59 Provisions upholding the democratic order are often unamendable,60 and unamendability also protects other principles important for democratic systems of government such as ‘separation of powers’,61 ‘rule of law’,62 ‘independence of courts’,63 and ‘judicial review of statutes’.64 Other unamendable provisions protect the ‘sovereignty of the people’,65 while many constitutions stipulate that the government is ‘elective’ and ‘representative’,66 protecting the modes and characteristics of elections and representation such as a ‘multiparty or pluralistic system’67 and ‘universal’, ‘direct’, ‘secret’, ‘free’, or ‘equal’ suffrage.68 Still other unamendable provisions protect constitutional rules regarding the head of state’s term limits and duration or eligibility criteria for election.69
The third notable protected group is the state’s fundamental ideology or ‘identity’. The state’s religious character is often protected from amendments. For example, some protect Islam as the state’s religion,70 while others protect the ‘Roman Catholic Apostolic’.71 In contrast, many constitutions protect the ‘secular’ nature of the state72 or the principle of ‘separation between the state and churches’.73 With regard to ideology, some constitutions explicitly prohibit amendment to their ‘social’ or ‘socialist character’ or to their ‘social justice’ or ‘socialist’ foundations.74 In some states, formal lineaments that are strongly connected to collective identity and self-determination are protected from change, such as the official language,75 the flag,76 the national anthem,77 the capital,78 or even the date of the proclamation of independence.79
The fourth notable protected group is that of basic rights. Many constitutions protect ‘fundamental rights and freedoms’.80 Others protect a more specific set of rights, such as ‘human dignity’,81 ‘freedom and equality’,82 ‘liberty’,83 ‘liberty of the press’,84 and ‘the right of workers and trade unions’.85 The fifth notable protected group is that of the state and national integrity. Many constitutions protect one or more of the following principles: ‘national unity’, ‘territorial integrity’, the ‘state’s existence’, ‘sovereignty’, or ‘independence’.86 Last, some constitutions protect unique constitutional subjects, such as immunities, amnesties, reconciliation and peace agreements,87 mandatory international law norms,88 the institution of chieftaincy,89 taxation,90 or rules governing nationality.91
One can identify two types of protected principles: universal and particular. Such protected principles are universal not in the sense that they are common to all world constitutions, but rather that they are considered common to all modern democratic societies; these include principles such as separation of powers and human dignity. Others, such as federalism, official language, and religion, might be regarded as particular because they reflect specific ideals and values of a distinct political culture.92
Following and advancing the works of Richard Albert and Beau Breslin, five characteristics of unamendability have been identified that are not necessarily exclusive, and often even overlap.93 These five characteristics include preservative, transformative, aspirational, conflictual, and bricolage. The perspective through which unamendability is examined combines functional and expressive approaches,94 as there are overlapping qualities between these approaches. An unamendable provision can have a certain function to fulfil, but at the same time, the unamendability reflects certain cultural values. Indeed, the mere expression of unamendability itself fulfils certain educational and symbolic functions. Albert is correct in claiming that just as constitutions carry out expressive functions serving as important symbols for the polity, the unamendability of a principle or an institution conveys its symbolic value. It sends a message both domestically to the citizens and to external observers regarding the state’s basic constitutional principles.95 Jon Elster notes that ‘the purpose of … unamendable clauses is … mainly symbolic’.96 If nothing else, unamendability creates the appearance of respect for that principle or institution and ‘makes a statement’ regarding its importance to the constitutional order.97
The most common aim of unamendability is preservation of core constitutional values. As every political order is established with a clear ambition to preserve itself, the first identified and central goal of unamendable provisions is to preserve the primary constitutive values of the constitutional order.98 Unamendable provisions protect an inviolable core that ensures the constitution’s permanence and preservation against changes that might annihilate its essential nucleus or cause disruption to the constitutional order itself.99 Unamendable provisions, as Ulrich Preuss claims, ‘Define the essential elements of the foundation myth. In other words, they define the collective “self” of the polity—the “we the people.” If the “eternal” normative stipulations were changed, the collective self—or identity—of the polity as embodied in the constitution would collapse.’100
There are different kinds of preservative unamendability. When unamendability protects democracy or human rights, its basic underlying idea is that of a ‘militant democracy’—evincing the fear that unfettered democracy will allow its own destruction.101 Unamendable provisions, as one commentator notes, ‘are the outcome of the experience of western constitutionalism to create safeguards to the preservation of constitutional democracy against the authoritarian encroachments or totalitarian takeover’.102 Thus, they reflect the term Amendophobia, meaning the fear that the amendment provision would be abused to abrogate the core values of society. In this sense, unamendability aims both to prevent abuse of the system by leaders who wish to fulfil their own ambitions103 and to serve as a pre-commitment mechanism of the ‘people’ to protect itself against its own weaknesses and passions.104 One limits oneself so that in times when one might lose control of one’s reasonable judgement, one will not be able to amend the constitution in a way that one will later regret.105 The metaphor of Ulysses and the Sirens is often used to illustrate this idea: ‘[w]hen Ulysses bound himself to the mast and had his rowers put wax in their ears, it was to make it impossible for him to succumb to the song of the sirens.’106 As Jon Elster notes, making certain subjects immune to amendment is ‘a perfect protection against impulsive rashness’.107
Unamendability can not only limit governmental power, but can also empower it. When unamendability protects the rights of a monarch, the principle of inherited rules, and succession to the throne, it serves as a mechanism to preserve the existing power of the rulers rather than limit it. For example, the Constitution of Albania of 1928 stipulates that Article 50, stating that ‘The King of the Albanians is His Majesty Zog I, of the illustrious Albania family of Zogu’, cannot be amended (Art. 224). The unamendability of the throne is also common in some of the Arab countries’ constitutions.108
Unamendability is often used by political actors as a tool in order to preserve power asymmetry.109 Parties enshrine existing political majority preferences in the constitution in such a way that it cannot be amended, so that they can protect against future alterations if they subsequently become a minority.110 Examples of such unamendability include the French unamendability of republicanism that marked the triumph of the republicans over the monarchists111 and the Mexican unamendability of confederalism that marked the victory of the federal party over the centralists, after a long struggle between the two parties concerning the country’s formation.112
Unamendability aims to assist in transforming political communities. In its extreme form, it is used to assist in creating and maintaining a wholly new political entity. A unique type of unamendable provision appears in the constitutions of independent entities created as part of multilateral agreements. For example, through the Zurich treaty of February 1959, Greece, Turkey, and Great Britain guaranteed Cyprus’ independence, territorial integrity, and security. The treaty was then incorporated within the Constitution of 1960 (Art. 181)113 and its basic articles were declared unamendable (Art. 182.1). Likewise, Hong Kong’s Basic Law of 1990 prohibits via Article 159(3) amendments that contravene the established basic policies of China regarding Hong Kong, as formulated in the Sino-British Joint Declaration of 1984 and in the Basic Law’s Preamble—a limitation which safeguards Hong Kong’s key elements of autonomy.114
The more dominant character of unamendable provisions, however, is their ability to transform polities. New constitutions aim to mark a dividing line between the past and the future, representing a new era and an attempt to cultivate a distinct political community. In reacting to past events, constitution-makers mainly have in mind the previous regime’s failures, atrocities, and abuses.115 Constitutions ‘reflect fear, originating in, and related to, the previous political regime’ and their guarantees reflect ‘the institutional negation of the oppression recently endured’.116 Emerging out of previous and dysfunctional regimes, new constitutional unamendability reacts to the faults of past political leaders as an attempt to undo historical injustice; thereby it has much to teach us about a country’s past, and often grave, experiences. The technique of explicitly limiting the amendment power, which migrated among different jurisdictions, at times retained its original expression. However, on other occasions it absorbed local content, primarily as a response to prior events and past experiences, reflecting the drafters’ ambitions to direct the nation away from past tragedies towards a more ‘just’ future.117
There are many examples of the ‘negative’ role that unamendability plays, as a lasting reminder of recent past devastations and as an attempt to transform—and never return to—‘legacies of past injustice’.118 Carl Friedrich describes the constitutional efforts to block the option of reverting to a grave past:
Since the experience of totalitarian dictatorship proved more terrible, the antagonism aroused by it was correspondingly more fanatic. From this experience there arose a constitution-making sentiment, a constituent power, so to speak, which was very strongly determined to bar the recurrence of any such transformation of a free society into voluntary servitude.119
Indeed, the German Basic Law’s unamendability of democracy and human dignity must be understood against the background of the Weimar Constitution, Nazi rule, and the Holocaust. Even the unamendability of federalism can be understood inter alia due to the German drafters’ realization that one of the Weimar’s constitutional failures was the suspension of federalism.120 Stephen Holmes argued that upon the collapse of communism, it would be a mistake for the new post-communist democracies to import the German ‘fondness for unamendable provisions’, since the vexing questions that they face ought to be resolved in the political sphere rather than in constitutional courts.121 Nonetheless, many of the new constitutional orders in Central and Eastern Europe—Bosnia and Herzegovina, the Czech Republic, Kazakhstan, Kosovo, Moldova, and Romania—did adopt unamendability, which may be understood in light of a bitter experience and as a rejection of the sordid past.122
Another example worth noting is that of Greece, whose constitutions have traditionally been characterized by a high degree of rigidity. The Constitution of 1844 did not include any revision procedure and the Constitutions of 1864 (Art. 107), 1911 (Art. 108), and 1927 (Art. 125) prohibited revisions of the entire constitution, allowing revisions only of non-fundamental provisions. Also, the Constitution of 1952 prohibited the revision of the entire constitution along with those provisions ‘which determine the regime as that of a crowned democracy as well as its fundamental provisions’ (Art. 108). Between 1967 and 1974, Greece was ruled by a dictatorship, and consequently the Constitution of 1975 specified that the form of government as a parliamentary republic, separation of powers, and certain fundamental rights and freedoms are unamendable principles (Art. 110.1). This limitation on the possibility of parliamentary obstruction was strongly influenced by the dictatorial experience.123
Likewise, in Africa during the continent’s first few decades of independence, African leaders frequently amended their constitution in order to further their own political agendas, which undermined constitutionalism and constitutional stability. In an effort to break from the past, many African states’ constitutions now include unamendable provisions protecting human rights and limiting presidential terms.124 A similar unamendability of term limits exists in some Latin American states in response to a problematic history of military coups, authoritarian rule, and leaders’ efforts to seize control of the state.125 Constitutional unamendability of presidential term limits highlights their normative importance126 and raises the political costs of trying to abrogate them.127 The 2014 Egyptian Constitution includes an unamendable provision which not only refers to ‘the re-election of [the] President of the Republic’ but also prohibits amendments to ‘the principles of freedom or equality stipulated in this Constitution … unless the amendment brings more guarantees’ (Art. 226, Section 5). This unamendability is seen as a clear attempt ‘to distance the new post-revolutionary Egypt from the authoritarian regimes of President Mubarak, who ruled the country under emergency law for almost thirty years, and the Muslim Brotherhood, who further restricted freedoms and infringed on human rights’.128
The above examples are indicative of what Kim Lane Scheppele terms ‘aversive constitutionalism’ or ‘a not-that constitutional’ theory, which highlights and condemns the evils of the prior regime that define, by negative example, the core of what the new constitutional order stands for. Thus, ‘negative theory starts from the premise that, whatever else the new constitution may mean, it must mean at a minimum that the abuses of the past regime are not allowed to continue’.129 The new constitutional provisions are then defined by the negative example of the old regime and the new constitutional identity stands first and foremost as a repudiation of the negative immediate past. Therefore, the transformative feature of unamendability wears ‘multifocal lenses’; it is simultaneously short-sighted and long-sighted, backward and forward-looking. It plays two conflicting roles: positive and negative. Negatively, unamendability represents the destruction of an existing political design. Positively, unamendability represents the birth of a new and different version of the polity—and this is the aspirational feature of unamendability.
Unamendability offers a ‘shorthand record’ of the memories and hopes of the constitution’s framers.130 It both promises a brighter future and reflects ‘the birth pangs of that particular society’.131 András Sajó explains that when constitutions affirm an emerging national identity, they aim, inter alia, to make selections that will cause the people to feel good, in contrast with the feelings of fear and outrage about past abuses.132 Likewise, unamendability imagines a more perfect polity, the kind that the citizenry aspires to become.133 If a constitution ‘reflects the triumphs and disappointments of a nation’s past and embodies its hope for the future’,134 this is properly illustrated by the constitution’s unamendable provisions. Of course, this aspirational characteristic of unamendability might be at odds with the prevailing culture or conditions of society.135
A notable example is the Brazilian Constitution of 1988. This constitution, which includes broad unamendability of federalism, suffrage, separation of powers, and individual rights (Art. 60.4), functioned as a transition to democracy after twenty-one years of military rule from 1964 to 1985. As a direct response to the military junta’s government, the Brazilian Constitution represents recommitment to constitutionalism, ‘points to the future’, and ‘shows where it wants to get to’.136 This example also illustrates why the various features of unamendability are overlapping and are not exclusive. The unamendable provision in the Brazilian Constitution, which reflects an aspirational character, can also be characterized as transformative, since it was adopted as a direct response to the former military dictatorship. The constitutional aspirations for a fresh design are inevitably informed by the faults and mistakes of the past. Therefore, the aspirational and transformative aspects of unamendability are strongly connected, and are, in fact, two sides of the same coin.
Unamendability can be used to manage certain conflicts, for example, by functioning as ‘gag rules’ for silencing contentious issues. Even in democratic societies—where the desire is to publicly debate disputes and to use political mechanisms for decision-making—there might be strong rationales not to openly debate certain disputes. A dispute might be so severe that a public debate might not bring about an accepted solution, but rather might excite negative feelings and deepen social divisions. Instead, ‘by tying our tongues about a sensitive question, we can secure forms of co-operation and fellowship otherwise beyond reach’,137 and in such cases, silencing can play a positive role.
Contrary to preservative unamendability, conflictual unamendability does not protect grandiose values. Rather, it protects issues that are a ‘bone of contention’ in society, such that if they were open to constitutional debate, they might tear the bonds of community. They anchor compromises that no one really likes, yet society agrees upon their necessity under existing circumstances. The best example of conflictual unamendability is Article V of the US Constitution, which originally protected the African slave trade.138 This temporal unamendability was the result of a compromise because South Carolina and Georgia would not consent to an immediate prohibition of slave trafficking. Insisting on ending slavery at the constitutional convention might have resulted in the collapse of the entire constitutional enterprise.139 The unamendability of equal suffrage in Article V also reflects a compromise rather than a constitutive principle aimed at moderating the smaller states’ fear that they would be overrun by larger states.140 As Adam Samaha notes, ‘the most entrenched textual norm is equal representation in the Senate for every state, but no one appears to believe this provision is the most central moral value in our law’.141 In that respect, James Fleming was correct in his observation that American unamendability ‘hardly looks like constitutive principles of a constitutional order’ and in his suggestion that the alternative role of Article V reflects ‘deep compromises with our Constitution’s constitutive principles’.142
A much less well-known example comes from the Kingdom of Tonga. Tonga’s Constitution of 1875, which is still in force, prohibits amendments that ‘affect the law of liberty, the succession to the Throne and the titles and hereditary estates of the nobles’ (Art. 79).143 This unamendability can only be understood from a historical perspective. The Constitution of 1875 transformed the prior chieftainship into a kingship and established a new aristocracy, which was composed of selected former chiefs. The aristocracy was actually established in an attempt to settle the ongoing conflicts over power and keep peace between the king and the former chiefs, who would otherwise have remained without any authority. The unamendability of nobility reflects this compromise and perpetuates the traditional privileges of chiefs in modern-day aristocracy.144
Importantly, along with its advantages, unamendability in the form of gag rules carries the risk that whatever is silenced might explode in the future.145 The silencing tactic thus has the practical disadvantage of intensifying the tension with regard to delicate issues—a process that might end in an uncontrolled revolutionary explosion, which the gag rule was originally intended to prevent.146 Therefore, it might be argued that it is perhaps better to use a ‘sunset provision’, a temporal unamendability, which allows for the contentious issue’s removal from the public agenda for a while without long-term restraints.147 Of course, the risk of using revolutionary forcible means to override unamendability is not unique to cases in which gag rules are used, but it is certainly exacerbated in these cases (see Chapter 4).
Another way through which unamendability can assist in solving conflicts is by serving as a tool for reconciliation in post-conflict societies. Constitution-building can play a vital role in post-conflict societies,148 as can unamendable provisions. This can be attempted by ensuring that peace agreements, immunities that have been granted, or the principle of reconciliation itself are protected from amendment. Burundi, a country which has suffered constantly from internal civil wars and major political instabilities,149 prohibits in its Constitution of 2005 amendments that would undermine reconciliation (Art. 299), in order to support the efforts undertaken by Burundians to bring about national reconciliation, as provided under the 2000 Arusha Peace and Reconciliation Agreement. In Sudan, a country that since its independence has been suffering from internal wars over its national identity, the second major civil war (1982–2005) ended with a Comprehensive Peace Agreement between the government of Sudan and the Sudan People’s Liberation Movement. This agreement initiated a six-year interim period, at the end of which the people of southern Sudan were given opportunity to exercise their right of self-determination through a referendum.150 In order to protect the peace agreement, the Constitution of 2005 prohibited amendments that affect the peace agreement without the approval of both signatory parties (Art. 224.2).
As a way of leaving the past behind and starting anew, unamendability aims to foster reconciliation by protecting immunities granted for prior wrongful acts by members of conflicting groups. For example, both Niger’s Constitutions of 1999 (Art. 139) and of 2009 (Art. 152) protect amnesties granted to the perpetrators of human rights violations which occurred during the coups of 27 January 1996 and 9 April 1999. Although this impunity was criticized as undermining the rule of law,151 this technique was repeated in the Constitution of 2010 (Art. 177), which prohibits amendments to the amnesty granted to perpetrators of the coup of 18 February 2010. In this way, the ruling junta and its military backers could be guarded so that they were not hunted down once they quit power. Also, in Fiji, the Constitution of 1990 granted immunity to all members of the security forces involved in the 1987 military coup and prohibited any amendments to the granted immunity (Art. 164.5). Whereas the granting of amnesties is a recognized, albeit divisive, mechanism in post-conflict transformation,152 establishing amnesties as unamendable principles raises them to the highest level of entrenchment.
Anthropologist Claude Lévi-Strauss coined the term ‘bricolage’, which means borrowing from what is readily at hand.153 Mark Tushnet puts the term in the constitution-making context to describe the situation in which a ‘constitution is assembled from provisions that a constitution’s drafters selected almost at random from whatever happened to be at hand when the time came to deal with a particular problem’.154 Thus, ‘bricolage’ shifts the focus from constitutional harmony to constitutional compromise and contingency.155
As aforementioned, unamendability does not always reflect the basic principles of a particular political regime. Sometimes it does, but as conflictual unamendability demonstrates, the protected values could simply be indicative of a compromise and therefore ought to be viewed within the historical context of contingency. At other times unamendability may simply be the result of constitutional ‘borrowing’ or ‘migration’, most notably in post-colonial constitutions.156 Africa is the clearest example of this: while certain African states include unamendable provisions in their constitutions,157 the influence of French and Portuguese origins is evident, as these provisions appear mainly in Francophone158 and Lusophone159 countries, with the odd exception in Anglophone countries.160
Portugal and Brazil are notable examples of both ‘recipients’ and ‘donors’ of unamendable provisions. For example, Portugal’s Constitution of 1911 abolished the monarchy and established its first republican government. Fearing the monarchists’ counter-reaction and remembering the monarchy’s abuse of power, the constitution-makers stipulated that amendments which purport to abolish the republican form of government cannot be admitted to discussion (Art. 82.2). This limitation, which was omitted in the Constitution of 1933, is similar to earlier French and Brazilian limitations, which is not surprising since the French and Brazilian constitutional models played a vital role in the making of the Portuguese Constitution of 1911.161 The current Constitution of 1976 is exceptional insofar as it includes the most detailed unamendable provision, protecting no less than fourteen subject matters from amendment, with some of them, such as the rights of workers and trade unions, being unique (Art. 288).162 The only countries with similarly detailed and unique unamendable provisions are those that were formerly Portuguese colonies.163
Similarly, Brazil also has a long history of unamendability.164 The Constitution of 1891 was a democratic constitution enacted soon after the abolition of the Unitarian monarchy. Inspired by the French and US constitutions,165 it prohibited amendments ‘tending to abolish the republican federal form or the equality of representation of the states in the senate’ (Art. 90.4). Additionally, during the 1988 constitution-making process, eminent Portuguese constitutionalists visited the country, bringing experience of the Portuguese constitutional process.166 Indeed, influenced by Portugal, the current Brazilian constitution includes a broad unamendable provision. These events demonstrate the borrowing of explicit unamendability.
Finally, a quick look at the global collection of unamendable provisions reveals that many of the unamendable provisions simply repeat themselves, often with slight changes, in a nation’s subsequent constitutions. This demonstrates the idea of using unamendable provisions that ‘are at hand’. An obvious example is the Dominican Republic, in which the same unamendable provision repeats itself in fifteen constitutions from 1907 to 2015. Such repetition seems more like an expression of historical or cultural convention than a reflection of the end result of a constructive, rational constitution-making process. Ozan Varol terms this phenomenon ‘constitutional stickiness’—even arbitrary or anachronistic existing constitutional provisions often stick during the re-making of constitutions, due to behavioural mechanisms and biases that entrench the constitutional status quo notwithstanding rational alternatives.167 Therefore, one should be cautious in always imputing to unamendable provisions a high degree of productive prudence.168
Unamendability is a complex and controversial constitutional mechanism. Indeed, alongside the legal issue rests the policy question of whether it is favourable to adopt unamendable provisions as a constitutional strategy in order to protect the constitutional order. There is no clear answer to that question. The proverb malum est consilium quod mutari non potest, meaning ‘a plan that is incapable of change is a bad plan’, may apply with great force to constitutional design. Whereas for some states unamendability could form a protective shield for the constitution’s nucleon to remain essential, for others unamendability might lead to dangerous extra-constitutional means in order to force a change.169 However, it is not the aim of this chapter to argue whether unamendability is necessarily good or bad or to discuss its effectiveness or enforceability, important as these issues are. These issues will be further developed in the subsequent parts of the book. The aim of this chapter is twofold. First, the chapter illustrates that explicit unamendability is a growing phenomenon of global constitutionalism. Indeed, as the Venice Commission maintained, explicit limitations on constitutional amendments are not a necessary element of constitutionalism.170 Nonetheless, as is made evident in this book, an increasing number of constitutions contain explicit material unamendability in order, inter alia, to protect essential characteristics of the constitutional order or principles perceived, in light of historical circumstances, as being at great risk of repeal via the democratic process. Second, through this chapter, the reader sees that unamendability can teach us a great deal about the polity. Unamendability carries out functional and expressive purposes, such as preservation, aspiration, transformation, and conflict management. It ties the past, present, and future of a polity, carrying a symbolic importance. Neil Walker correctly remarked that unamendability ‘tells a story about a people and its common purpose that not only resonates with more general and powerful myths of peoplehood but which is partly vindicated by the historical record that constitutional law itself creates’.171 Thus, in many ways, these noli me tangere or ‘not to be touched’ provisions comprise the ‘genetic code’ of the constitution.172
10 Juliane Kokott, ‘From Reception and Transplantation to Convergence of Constitutional Models in the Age of Globalization—with Special Reference to the German Basic Law’ in Christian Strack (ed.), Constitutionalism, Universalism, and Democracy: A Comparative Analysis (Nomos Verlagsges 1999) 71, 109; Entela Hoxhaj and Florian Bjanku, ‘The Basic Principles as Limits of Constitutional Revision in the Constitutional Jurisprudence and Doctrine in Europe’ (2013) 1(3) Glob. J. Arts Humanities & Soc. Sc. 47.
13 Sharon Weintal, Eternal Clauses in the Constitution (LLD Thesis, Hebrew University of Jerusalem 2005) 11, 28; Sharon Weintal, ‘The Challenge of Reconciling Constitutional Eternity Clauses with Popular Sovereignty: Toward Three-track Democracy in Israel as a Universal Holistic Constitutional System and Theory’ (2011) 44(3) Isr. L. Rev. 449. For example, the unamendability of human rights reflects the idea that fundamental rights should not be subject to the majority’s will. See Gunnar Beck, ‘The Idea of Human Rights between Value Pluralism and Conceptual Vagueness’ (2006–7) 25 Penn. St. Int’l L. Rev. 615.
19 Ancient Athenians entrenched certain financial decrees, treaties, and alliances in order to enhance their credibility in the eyes of potential allies. The Cromwellian Constitution of 1653 recognized fundamental and unchangeable laws. See A. V. Dicey, General Characteristics of English Constitutionalism: Six Unpublished Lectures (Peter Raina ed., Peter Lang AG 2009) 103; Schwartzberg (n. 17) 32, 101–3.
21 Pennsylvania Charter of Privileges 28 October 1701, <http://www.constitution.org/bcp/penncharpriv.htm>
33 Klein (n. 28) 61.
34 One has to be cautious that these numbers include those multiple constitutions of a same state. In other words, if State X had Y constitutions that all included unamendable provisions, then all Y constitutions were included in the collection and in the counting, which might lead to a standard deviation.
38 On the German unamendable clause, see Helmut Goerlich, ‘Concept of Special Protection for Certain Elements and Principles of the Constitution Against Amendments and Article 79(3), Basic Law of Germany’ (2008) 1 NUJS L. Rev. 397; Monika Polzin, ‘Constitutional Identity, Unconstitutional Amendments and the Idea of Constituent Power: The Development of the Doctrine of Constitutional Identity in German Constitutional Law’ (2016) 14(2) Int’l J. Const. L. 411.
46 See, for example, China Const. (1923), Art. 1: ‘The Republic of China shall be a unified republic forever’; Venezuela Const. (1999), Art. 6: ‘The government … is and shall always be democratic, participatory, elective, decentralized, alternative, responsible and pluralist, with revocable mandates.’
50 For an analysis, see the works of Marie-Francoise Rigaux, La theorie des limites materielles a l’exercice de la fonction constituante (Larcier 1985) 46–51; Weintal, Eternal Clauses in the Constitution (n. 13) 62–108.
51 Bahrain Const. (1973), Art. 120c; Cambodia Const. (1993), Art. 153; Kyrgyzstan Const. (1993), Art. 85(3)(5), 98; Laos Const. (1947), Art. 43; Libya Const. (1951), Art. 197; Moroccan Consts (2011), Art. 175; (1992), Art. 100; (1972), Art. 106.
59 Angola Consts (2010), Art. 236; (1975), Art. 159; Armenia Const. (1995), Art. 114; Cape Verde Const. (1992), Art. 313; Madagascar Const. (2010), Art. 163; Mozambique Const. (2004), Art. 292; Portugal Const. (1976), Art. 288; Sao Tome and Principe Const. (1975), Art. 154. On different levels of entrenching autonomy, see Markku Suksi, ‘On the Entrenchment of Autonomy’ in Markku Suksi (ed.), Autonomy: Applications and Implications (Martinus Nijhoff Publishers 1998) 151.
60 Algeria Const. (1989), Art. 178; Armenia Const. (1995), Art. 114; Cameroon Const. (1972), Art. 63; Czech Republic Const. (1992), Art. 9; Dominican Republic Const. (2002–3), Art. 119; Ecuador Const. (1967), Art. 258; Equatorial Guinea Const. (1991), Art. 104; Eritrea Const. (1952), Art. 91(2); Ethiopia Const. (1952), Art. 91(2); Gabon Const. (1990), Art. 72; Germany Const. (1949), Art. 79(3); Guatemala Const. (1985), Art. 281; Haiti Const. (1987), Art. 284(4); Iran Const. (1979), Art. 177; Moroccan Const. (2011), Art. 175; Mozambique Const. (2004), Art. 292; Rwanda Consts (1991), Art. 96(2); (1978), Art. 91; (1962), Art. 107; Sao Tome and Principe Const. (1975), Art. 154; Somalia Const. (1960), Art. 105; Tajikistan Const. (1994), Art. 100; Thailand Const. (2007), Art. 291(1); Timor Leste Const. (2002), Art. 156; Turkey Const. (1982), Art. 4.
61 Angola Const. (2010), Art. 236; Brazil Const. (1988), Art. 60(4); Cape Verde Const. (1992), Art. 313; Chad Const. (1996), Art 223; Chad Const. (1989), Art. 202; Guinea Const. (2010), Art. 154; Guinea Const. (1990), Art. 91; Madagascar Const. (2010), Art. 163; Mozambique Const. (2004), Art. 292; Portugal Const. (1976), Art. 288; Sao Tome and Principe Const. (1975), Art. 154; Timor-Leste (East Timor) Const. (2002), Art. 156.
63 Angola Const. (2010), Art. 236; Cape Verde Const. (1992), Art. 313; Mozambique Const. (2004), Art. 292; Peru Const. (1839), Art. 183; Portugal Const. (1976), Art. 288; Romania Const. (1991), Art. 148; Sao Tome and Principe Const. (1975), Art. 154; Timor-Leste Const. (2002), Art. 156.
66 Dominican Republic Const. (2002/3), Art. 119; Ecuador Consts (1869), Art. 115; (1861), Art. 132; (1851), Art. 139; Guatemala Const. (1985), Art. 281; Laos Const. (1947), Art. 43; Libya Const. (1951), Art. 197; Mozambique Const. (2004), Art. 292; Peru Const. (1839), Art. 182; Switzerland Const. (1798), Art. 2; Venezuela Const. (1858), Art. 164.
68 Angola Const. (2010), Art. 236; Brazil Const. (1988), Art. 60(4); Guatemala Const. (1965), Art. 267; Mozambique Const. (2004), Art. 292; Niger Const. (2010), Art. 177; Portugal Const. (1976), Art. 288; Sao Tome and Principe Const. (1975), Art. 154; Timor-Leste Const. (2002), Art. 156.
69 Central African Republic Const. (2004), Art. 108; Dominican Republic Const. (1881), Art. 110; Egypt Const. (2014), Art. 226; El Salvador Const. (1945), Art. 171; Guatemala Const. (1985), Art. 281; Guinea Const. (2010), Art. 154; Honduras Const. (1982), Art. 374; Madagascar Const. (2010), Art. 163; Niger Const. (2010), Art. 177; Qatar Const. (2004), Art. 147; The Republic of Congo Const. (2002), Art. 185; Rwanda Const. (2003), Art. 193.
72 Angola Const. (2010), Art. 236; Burundi Consts. (2005), Art. 299; (1992), Art. 182; Central African Republic Const. (2004), Art. 108; Chad Const. (1996), Art. 223; The Republic of Congo Const. (2002), Art. 185; Cote d’Ivoire Const. (2000), Art. 127; Guinea Const. (2010), Art. 154; Mali Const. (1992), Art. 118; Sao Tome and Principe Const. (1975), Art. 154; Tajikistan Const. (1994), Art. 100; Togo Const. (1992), Art. 144; Turkey Const. (1982), Art. 4.
80 See, for example, Afghanistan Const. (2004), Art. 149; Algeria Consts (1989), Art. 178; (1976), Art. 195; Angola Const. (1975), Art. 159; Angola Const. (2010), Art. 236; Central African Republic Const. (2004), Art. 108; Chad Consts (1996), Art. 223; (1989), Art. 202; The Republic of Congo Const. (1992), Art. 178; Ecuador Const. (2008), Art. 441; Moldova Const. (1994), Art. 142; Moroccan Const. (2011), Art. 175; Mozambique Const. (2004), Art. 292; Namibia Const. (1990), Art. 131; Romania Const. (1991), Art. 148; Russian Federation Const. (1993), Art. 135; Somalia Consts (1979), Art. 112(3); (1960), Art. 105.
86 See, for example, Angola Consts (1975), Art. 159; (2006), Art. 206; Azerbaijan Const. (1995), Art. 158; Burundi Consts (2005), Art. 299; (1992), Art. 182; Cameroon Const. (1972), Art. 63; Cape Verde Const. (1992), Art. 313; Chad Consts (1996), Art. 223; (1989), Art. 202; Cote d’Ivoire Const. (1960), Art. 73; Cuba Const. (1940); Djibouti Const. (1992), Art. 88; Equatorial Guinea Const. (1991), Art. 104; Kazakhstan Const. (1993), Art. 91(2); Madagascar Const. (2010), Art. 163; Mauritania Const. (1991), Art. 99(3); Guatemala Const. (1985), Art. 281; Mexico Const. (1824), Art. 171; Moldova Const. (1994), Art. 142; Mozambique Const. (2004), Art. 292; Nepal Const. (2015), Art. 274(1); Portugal Const. (1976), Art. 288; Romania Const. (1991), Art. 148; Rwanda Consts (2003), Art. 193; (1991), Art. 96(2); Sao Tome and Principe Const. (1975), Art. 154; Somalia Const. (1979), Art. 112(3); Tajikistan Const. (1994), Art. 100; Timor-Leste Const. (2002), Art. 156. On the unamendability of territorial integrity, see Yaniv Roznai and Silvia Suteu, ‘The Eternal Territory? The Crimean Crisis and Ukraine’s Territorial Integrity as an Unamendable Constitutional Principle’ (2015) 16(3) German L. J. 542.
92 Weintal, Eternal Clauses in the Constitution (n. 13) 20–5, 62–108.
93 Albert (n. 12) identifies three characteristics of entrenchment: preservative, transformational, and reconciliatory. Breslin (n. 6) identifies various functions of constitutions, such as transformative, aspirational, empowering, and limiting mechanisms, and mechanisms for managing political conflicts.
98 Albert (n. 12) 678–85.
99 Adriano Sant’Ana Pedra, Teoria da mutação constitucional: limites e possibilidades das mudanças informais da Constituição a partir da teoria da concretização (PhD Thesis, Universidad Catolica de São Paulo 2009) 222.
101 See the classical articulation of Karl Loewenstein, ‘Militant Democracy and Fundamental Rights I, II’ (1937) 31 Am. Pol. Sci. Rev. 417, 638. Schwartzberg (n. 17) 7, 21 terms this ‘democratic autophagy’ and Gregory H. Fox and Georg Nolte, ‘Intolerant Democracies’ (1995) 36 Harv. Int’l L. J. 1 call it ‘intolerant democracy’.
105 This is often termed ‘Peter when sober imposes chains on Peter when drunk’. See Jon Elster, ‘Ways of Constitution-making’ in Axel Hadenius (ed.), Democracy’s Victory and Crisis (Cambridge University Press 1997) 123, 135.
108 See, for example, Bahrain Const. (1973), Art. 120(c); Jordan Const. (1952), Art. 126(2); Libya Const. (1951), Art. 197; Qatar Const. (2004), Art. 145; Morocco Consts (1970, 1972, 1992), Arts 100, 106, and 100 respectively. This is a manifestation of the more general character of the Arab world’s constitutionalism in which written constitutions enhance rather than limit governmental power. See Nathan J. Brown, Constitutions in a Nonconstitutional World: Arab Basic Laws and the Prospects for Accountable Government (SUNY Press 2002).
109 Compare with Ginsburg’s insurance theory to explain the adoption of judicial review within constitutions and with Hirschl’s interest-based hegemonic preservation approach. See Tom Ginsburg, Judicial Review in New Democracies: Constitutional Courts in Asian Cases (Cambridge University Press 2003); Ran Hirschl, Towards Juristocracy: The Origins and Consequences of the New Constitutionalism (Harvard University Press 2004).
110 Cf. Jack Knight, ‘Institutionalizing Constitutional Interpretation’ in John Ferejohn, Jack N. Rakove, and Jonathan Riley (eds), Constitutional Culture and Democratic Rule (Cambridge University Press 2001) 361, 367.
114 Yash Ghai, ‘The Legal Foundations of Hong Kong’s Autonomy: Building on Sand’ (2007) 29(1) Asia Pacific Journal of Public Administration 3, 7. It has been argued that since the Basic Law is a statute, this provision itself can be repealed or amended by simple legislation. See Owen M. Fiss, ‘Hong Kong Democracy’ (1998) 36(3) Colum. J. Trans’l L. 493, 497–8.
117 Albert (n. 12) 685–93. Ruti Teitel, ‘Transitional Jurisprudence: The Role of Law in Political Transformation’ (2009) 106 Yale L. J. 2014, 2057, is right in claiming that what is deemed ‘just’ is contextual, contingent, and informed by prior injustices.
119 Carl J. Friedrich, ‘Some Reflections on the Meaning and Significance of Constitution-making in Our Time’ in Henry Steele Commager and Karl Loewenstein (eds), Festschrift für Karl Loewenstein (Mohr Siebeck 1971) 120, 124.
120 Ernst Benda, ‘The Protection of Human Dignity (Article 1 of the Basic Law)’ (2000) 53 SMU L. Rev. 443, 445; Kim Lane Scheppele, ‘Aspirational and Aversive Constitutionalism: The Case for Studying Cross-constitutional Influence through Negative Models’ (2003) 1(2) Int’l J. Const. L. 296, 300–1.
122 András Sajó, Western Rights? Post-communist Application (Kluwer Law International 1996) 72. On constitutional revisions in Eastern Europe see Stephen Holmes and Cass R. Sunstein, ‘The Politics of Constitutional Revision in Eastern Europe’ in Sanford Levinson (ed.), Responding to Imperfection: The Theory and Practice of Constitutional Amendment (Princeton University Press 1995) 275.
123 Georgios Trantas et al., ‘Greece: “Rationalizing” Constitutional Powers in a Post-dictatorial Country’ in Kaare Ström, Wolfgang C. Müller, and Torbjörn Bergman (eds), Delegation and Accountability in Parliamentary Democracies (Oxford University Press 2006) 376, 377.
124 See, generally, Fombad (n. 103) 28; Charles Fombad and Nathaniel A. Inegbedion, ‘Presidential Term Limits and Their Impact on Constitutionalism in Africa’ in Charles Fombad and Christina Murray (eds), Fostering Constitutionalism in Africa (PULP 2010) 1.
125 On the prohibition of re-election in Latin America see Harry Kantor, ‘Efforts Made by Various Latin American Countries to Limit The Power of the President’ in Arend Lijphart (ed.), Parliamentary versus Presidential Government (Oxford University Press 1992) 101, 102.
126 Based upon the unamendable provision prohibiting any amendment concerning presidential term limits, in 25 May 2009, the Constitutional Court of Niger declared as unconstitutional a call for a referendum that would have suspended the Constitution and allowed the President to continue in office as an interim president for three years. See Cour Constitutionnelle AVIS n. 02/CC of 26.05.2009, <http://cour-constitutionnelle-niger.org/documents/avis/2009/avis_n_002_cc_2009.pdf >
127 Gideon Maltz, ‘The Case for Presidential Term Limits’ (2007) 18(1) J. of Democracy 128, 141. It seems that it was precisely the unamendable presidential term limit within the Constitution of Honduras that triggered President Zelaya’s removal from office in 2009. See Dante B. Gatmaytan, ‘Can Constitutionalism Constrain Constitutional Change?’ (2010) 3(1) Nw. Interdisc. L. Rev. 22–3; Andrew Friedman, ‘Dead Hand Constitutionalism: The Danger of Eternity Clauses in New Democracies’ (2011) 4 Mex. L. Rev. 77, 82–3. Interestingly, in a unanimous judgment of 22 April 2015, the Constitutional Chamber of the Honduran Supreme Court declared as unconstitutional the constitutional provisions that prohibited presidential re-election and the unamendability which prohibited any attempt to alter the no-re-election rule. See Corte Suprema de Justicia, F-165, <http://www.poderjudicial.gob.hn/Documents/FalloSCONS23042015.pdf>; David Landau, Yaniv Roznai, and Rosalind Dixon, ‘Doctrinal Capture and Constitutional Change’ (unpublished paper, 2016).
133 Albert (n. 12) 685.
136 Conrado Hübner Mendes, ‘Judicial Review of Constitutional Amendments in the Brazilian Supreme Court’ (2005) 17 Fla. J. Int’l L. 449, 452–3. See also Luciano Maia, ‘The Creation and Amending Process in the Brazilian Constitution’ in Mads Andenas (ed.), The Creation and Amendment of Constitutional Norms (BIICL 2000) 54.
137 Stephen Holmes, ‘Gag Rules or the Politics of Omission’ in Jon Elster and Rune Slagstad (eds), Constitutionalism and Democracy (Cambridge University Press 1993) 19. See also Gideon Sapir, The Constitutional Revolution—Past, Present and Future (Miskal–Yedioth Ahronoth Books 2010) 223–4 [Heb.].
139 Schwartzberg (n. 17) 129–39.
140 Ibid, 139–43.
143 In 2004, the Supreme Court of Tonga faced a challenge to a constitutional amendment carving out exceptions to freedom of speech and press that are, as the Supreme Court held, included within ‘the law of liberty’ which is protected by Art. 79. Since some of the justifications for restricting expression were excessively wide and vague, such as ‘the public interest’ or ‘cultural traditions of the Kingdom’, they were declared unconstitutional and void. See Taione and Others v. Kingdom of Tonga,  TOSC 48,  4 LRC 661; (2006) 32 Commw. L. Bull. 156.
146 Holmes (n. 137) 56.
147 Sapir (n. 137); Holmes (n. 137) 25–6. On sunset provisions, see Ozan Varol, ‘Temporary Constitutions’ (2014) 102 Cal. L. Rev. 409; Sofia Ranchordás, Constitutional Sunsets and Experimental Legislation: A Comparative Perspective (Edward Elgar 2015); Antonis Kouroutakis, The Constitutional Value of Sunset Clauses: An Historical and Normative Analysis (Routledge 2017).
148 Kirsti Samuels, ‘Postwar Constitution Building—Opportunities and Challenges’ in Roland Paris and Timothy D. Sisk (eds), The Dilemmas of Statebuilding: Confronting the Contradictions of Postwar Peace Operations Security and Governance Series (Taylor & Francis 2009) 173. On Unamendability in Post-conflict see Silvia Suteu, ‘Eternity Clauses in Post-conflict and Post-authoritarian Constitution-making: Promise and Limits’ (forthcoming 2017) Glob. Const. <www.politicalsettlements.org/files/2016/Global-Constitutionalism-SSRN.pdf>
149 Guglielmo Verdirame, ‘Ethnicity, Conflict and Constitutional Change in Rwanda and Burundi’ in Andenas (n. 136) 302.
151 Amnesty International, ‘Niger—Impunity Enshrined in the Constitution 2’ (8 September 1999), <https://www.amnesty.org/en/library/asset/AFR43/002/1999/en/d1318eff-e0f8-11dd-be39-2d4003be4450/afr430021999en.pdf>
154 Tushnet (n. 94) 1287.
156 See, generally, Sujit Choudhry (ed.), The Migration of Constitutional Ideas (Cambridge University Press 2006). Peter Suber, The Paradox of Self-amendment: A Study of Logic, Law, Omnipotence, and Change (Peter Lang Publishing 1990) 9, wrote that unamendable provisions are likely to appear in constitutions that were imposed by a foreign or imperial power since ‘a sovereign people will not ordinarily want to limit its power to make law’. This is not completely accurate, as many self-drafted constitutions include such provisions.
157 Fombad (n. 103) 34–51; Charles M. Fombad, ‘Some Perspectives on Durability and Change under Modern African Constitutions’ (2013) 11(2) Int’l J. Const. L. 382.
158 Algeria Const. (1989), Art. 178; Burkina Faso Const. (1991), Art. 165; Chad Consts (1996), Art. 223; (2006), Art. 124; Gabon Const. (1991), Art. 117; Mali Const. (1992), Art. 118; Morocco Const. (1992), Art. 100; Senegal Const. (2001), Art. 103. On constitutional amendments in the African Francophone states, see Meledje F. Djedjro, ‘La revision des constitutions dans les etats Africains francophones’ (1992) 1 Revue du droit public 111.
162 Víctor Ferreres Comella, Constitutional Courts & Democratic Values—A European Perspective (Yale University Press 2009) 107; Jonatas E. M. Machado, ‘The Portuguese Constitution of 1976—Half-life and Decay’ in Xenophon Contiades (ed.), Engineering Constitutional Change: A Comparative Perspective on Europe, Canada and the USA (Routledge 2013) 273, 286–7, 296–7.
163 See Mozambique Const. (2004), Art. 292; Angola Consts (1975), Art. 159; (2010), Art. 236; Cape Verde Const. (1992), Art. 313; Sao Tome and Principe Const. (1975), Art. 154; Timor-Leste Const. (2002), Art. 156.
165 Maia (n. 136) 61.
167 Ozan O. Varol, ‘Constitutional Stickiness’ (2016) 49 UC Davis L. Rev. 899. On this ‘path dependency’ in constitution-making, see also Eugene D. Mazo, ‘The Upstream Problem in Constitutionalism’ (2015) 50 Wake Forest L. Rev. 101.
168 Cf. A. V. Dicey, ‘Will the Form of Parliamentary Government be Permanent?’ (1899–1900) 13 Harv. L. Rev. 67, 71 (stating that a constitution’s form of government ‘has in many cases been determined not by any rational conviction that a particular kind of government was adapted to meet the wants of a given people, but by the unconscious desire of constitution-makers to follow the reigning fashion of their day’).
169 See, for example, Friedman (n. 127) 93–6.
170 European Commission for Democracy through Law, Report on Constitutional Amendment, para. 217 (Venice, 11–12 December 2009), <http://www.venice.coe.int/webforms/documents/CDL-AD(2010)001.aspx>