Entrenchment clause
Encyclopedia
An entrenched clause or entrenchment clause of a constitution
is a provision which makes certain amendments either more difficult than others or impossible. It may require some form of supermajority
, a referendum
submitted to the people, or the consent of some other party.
An entrenched clause whose intent is to prevent subsequent amendments, will, once it is adopted, and provided that it is correctly drafted, make some portion of a constitution irrevocable except through the assertion of the right of revolution
.
Any amendment to a constitution which would not satisfy the prerequisites enshrined in a valid entrenched clause would lead to so-called "unconstitutional constitutional law", i.e. an amendment to constitutional law text which would appear to be constitutional law only by its form, albeit being unconstitutional as with respect to the procedure in which it has been enacted, or as to the material content of its provisions.
Entrenched clauses are, in some cases, justified as protecting the rights of a minority from the dangers of majoritarianism
, but they are often challenged by their opponents as being particularly undemocratic. In other cases, the objective may be to prevent amendments to the constitution which would pervert the fundamental principles enshrined in it, in particular to prevent the creation of a "legalistic" dictatorship.
, they may not entrench themselves by a regular act. Therefore, the entrenchment of the national flag in the Flags Act 1953 is without force as the entrenchment clause could be removed (through normal legislative amendment) by later parliaments.
The Commonwealth (i.e. federal) Constitution
is entrenched by virtue of being an act of Imperial Parliament which the Commonwealth Parliament only has the power to amend according to its terms. These are specified in section 128
. The Imperial Parliament's power to amend it in Australian law has been revoked by the Statute of Westminster Adoption Act 1942
and 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. Consequently, it is possible that the entrenchment clauses are unentrenchable, preventing state law from having effectively entrenching clauses.
, defining the amendment procedure, provides in the paragraph 2 that the rights and freedoms, as established in the Article II of the Constitution, may not be eliminated or diminished, and that the paragraph 2 itself may not be altered.
, 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
abolished a Constitutional Act
adopted to invoke one off early legislative election. The disputed act was seen as an individual decision in violation of then-effective constitutional procedure regulating early elections.
states in its Title XVI, Article 89, On Amendments to the Constitution,"The republic
an form of government shall not be the object of any amendment" thus forbidding the restoration of the monarchy
or the empire
.
(Grundgesetz), which forms the federal constitution of Germany, provides in its Article 79 section 3, that any constitutional amendment would be inadmissible, if such amendment would provide that Germany would not consist of states (Länder) any more, that the Länder would not be entitled any more to participate in the federal law-making procedures, or if the following constitutional principles would be affected:
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 allowed Germany to form part of the European Union
, unsuccessfully claiming that those amendments would affect the eternal principle of sovereignty of the people.
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." This unmodifiable article has played an important role in the 2009 Honduran constitutional crisis
.
, including an oath of allegiance and a representative of the Crown. 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.
, 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 specifies 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.
. The constitution's entrenched clauses protected voting rights
, including those of some Coloured
s, but they lost their votes after the Government packed the Senate and Supreme Court with its sympathisers.
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."
contains two entrenched clauses. One clause prohibited any constitutional amendment regarding the international slave trade. This clause expired in 1808. The other clause, still in effect, states that "no State, without its Consent, shall be deprived of its equal Suffrage in the Senate". This has been interpreted to require unanimous ratification of any amendment altering the composition of the United States Senate
.
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. The clause does not appear to be self-entrenched; that is, it does not, by its express terms, forbid its own amendment or repeal. So it is possible that one could proceed by first repealing the clause and then abolishing equality in the Senate through a subsequent amendment .
The Corwin Amendment
(1861), prohibiting a constitutional amendment with respect to slavery
, might have become another entrenched clause had it become part of the U.S. Constitution.
, 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 among 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.
Constitution
A constitution is a set of fundamental principles or established precedents according to which a state or other organization is governed. These rules together make up, i.e. constitute, what the entity is...
is a provision which makes certain amendments either more difficult than others or impossible. It may require some form of supermajority
Supermajority
A supermajority or a qualified majority is a requirement for a proposal to gain a specified level or type of support which exceeds a simple majority . In some jurisdictions, for example, parliamentary procedure requires that any action that may alter the rights of the minority has a supermajority...
, a referendum
Referendum
A referendum is a direct vote in which an entire electorate is asked to either accept or reject a particular proposal. This may result in the adoption of a new constitution, a constitutional amendment, a law, the recall of an elected official or simply a specific government policy. It is a form of...
submitted to the people, or the consent of some other party.
An entrenched clause whose intent is to prevent subsequent amendments, will, once it is adopted, and provided that it is correctly drafted, make some portion of a constitution irrevocable except through the assertion of the right of revolution
Right of revolution
In political philosophy, the right of revolution is the right or duty, variously stated throughout history, of the people of a nation to overthrow a government that acts against their common interests...
.
Any amendment to a constitution which would not satisfy the prerequisites enshrined in a valid entrenched clause would lead to so-called "unconstitutional constitutional law", i.e. an amendment to constitutional law text which would appear to be constitutional law only by its form, albeit being unconstitutional as with respect to the procedure in which it has been enacted, or as to the material content of its provisions.
Entrenched clauses are, in some cases, justified as protecting the rights of a minority from the dangers of majoritarianism
Majoritarianism
Majoritarianism is a traditional political philosophy or agenda which asserts that a majority of the population is entitled to a certain degree of primacy in society, and has the right to make decisions that affect the society...
, but they are often challenged by their opponents as being particularly undemocratic. In other cases, the objective may be to prevent amendments to the constitution which would pervert the fundamental principles enshrined in it, in particular to prevent the creation of a "legalistic" dictatorship.
Australia
As Australian Parliaments have inherited the British principle of parliamentary sovereigntyParliamentary sovereignty
Parliamentary sovereignty is a concept in the constitutional law of some parliamentary democracies. In the concept of parliamentary sovereignty, a legislative body has absolute sovereignty, meaning it is supreme to all other government institutions—including any executive or judicial bodies...
, they may not entrench themselves by a regular act. Therefore, the entrenchment of the national flag in the Flags Act 1953 is without force as the entrenchment clause could be removed (through normal legislative amendment) by later parliaments.
The Commonwealth (i.e. federal) Constitution
Constitution of Australia
The Constitution of Australia is the supreme law under which the Australian Commonwealth Government operates. It consists of several documents. The most important is the Constitution of the Commonwealth of Australia...
is entrenched by virtue of being an act of Imperial Parliament which the Commonwealth Parliament only has the power to amend according to its terms. These are specified in section 128
Chapter VIII of the Australian Constitution
Chapter VIII of the Constitution of Australia provides the method for altering the Constitution. It contains only one section, section 128, which sets out the requirements for constitutional referendums by which the words of the Constitution may be altered....
. The Imperial Parliament's power to amend it in Australian law has been revoked by the Statute of Westminster Adoption Act 1942
Statute of Westminster Adoption Act
There are several Acts named Statute of Westminster Adoption Act:* Statute of Westminster Adoption Act 1942, an Act of the Parliament of Australia* Statute of Westminster Adoption Act 1947, a constitutional Act of the Parliament of New Zealand...
and 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. Consequently, it is possible that the entrenchment clauses are unentrenchable, preventing state law from having effectively entrenching clauses.
Bosnia and Herzegovina
The Article X of the Constitution of Bosnia and HerzegovinaConstitution of Bosnia and Herzegovina
The Constitution of Bosnia and Herzegovina is the highest legal document of Bosnia and Herzegovina. The current Constitution is the Annex 4 of The General Framework Agreement for Peace in Bosnia and Herzegovina, also known as the Dayton Agreement, signed in Paris on 14 December 1995...
, defining the amendment procedure, provides in the paragraph 2 that the rights and freedoms, as established in the Article II of the Constitution, may not be eliminated or diminished, and that the paragraph 2 itself may not be altered.
Czech Republic
Article 9 of the Czech ConstitutionConstitution of the Czech Republic
The current Constitution of the Czech Republic was adopted on December 16, 1992. It replaced the constitution of Czechoslovakia , which split into the Slovak Republic and the Czech Republic by act of parliament on January 1, 1993, through the so-called Velvet Divorce.The document is organized into...
, 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
Constitutional Court of the Czech Republic
The Constitutional Court of the Czech Republic is a specialized type of court which primarily works to protect the people of the Czech Republic against violations of the constitution. In this respect, it is similar in functionality to the US Supreme Court, but is distinct from the Supreme Court of...
abolished a Constitutional Act
Constitutional act of the Czech Republic
A constitutional act, with respect to the laws of the Czech Republic, is an act which can change the Constitution of the Czech Republic, provisions of the Charter of Fundamental Rights and Basic Freedoms, the conditions under which the citizenry may exercise state power directly, or the exterior or...
adopted to invoke one off early legislative election. The disputed act was seen as an individual decision in violation of then-effective constitutional procedure regulating early elections.
France
The French ConstitutionConstitution of France
The current Constitution of France was adopted on 4 October 1958. It is typically called the Constitution of the Fifth Republic, and replaced that of the Fourth Republic dating from 1946. Charles de Gaulle was the main driving force in introducing the new constitution and inaugurating the Fifth...
states in its Title XVI, Article 89, On Amendments to the Constitution,"The republic
Republic
A republic is a form of government in which the people, or some significant portion of them, have supreme control over the government and where offices of state are elected or chosen by elected people. In modern times, a common simplified definition of a republic is a government where the head of...
an form of government shall not be the object of any amendment" thus forbidding the restoration of the monarchy
Monarchy
A monarchy is a form of government in which the office of head of state is usually held until death or abdication and is often hereditary and includes a royal house. In some cases, the monarch is elected...
or the empire
Empire
The term empire derives from the Latin imperium . Politically, an empire is a geographically extensive group of states and peoples united and ruled either by a monarch or an oligarchy....
.
Germany
The Basic Law for the Federal Republic of GermanyBasic Law for the Federal Republic of Germany
The Basic Law for the Federal Republic of Germany is the constitution of Germany. It was formally approved on 8 May 1949, and, with the signature of the Allies of World War II on 12 May, came into effect on 23 May, as the constitution of those states of West Germany that were initially included...
(Grundgesetz), which forms the federal constitution of Germany, provides in its Article 79 section 3, that any constitutional amendment would be inadmissible, if such amendment would provide that Germany would not consist of states (Länder) any more, that the Länder would not be entitled any more to participate in the federal law-making procedures, or if the following constitutional principles would be affected:
- the inviolability of the dignity of man and the respect to and protection of it by any official power;
- the fundamental validity of human rightsHuman rightsHuman rights are "commonly understood as inalienable fundamental rights to which a person is inherently entitled simply because she or he is a human being." Human rights are thus conceived as universal and egalitarian . These rights may exist as natural rights or as legal rights, in both national...
; - the commitment of the state to basic rights;
- the name of the state, including its denomination as republicRepublicA republic is a form of government in which the people, or some significant portion of them, have supreme control over the government and where offices of state are elected or chosen by elected people. In modern times, a common simplified definition of a republic is a government where the head of...
; - democracy;
- the principle of being a social state;
- sovereignty of the people, which is exercised by elections and referendums;
- separation of powers of the legislative, the executive, and the judiciary;
- the requirement of the constitutionality of legislation;
- the submission of the executive and the judiciary to the complete legal order;
- the legal right of all citizens to resist any person who tries to overthrow this order, if other remedy is not available ("right to resistance").
The original purpose of this eternity clause
Eternity clause
The eternity clause is Article 79 paragraph of "this Basic Law" for the Federal Republic of Germany . This clause prohibits outright certain amendments to the German constitution. It was included in the original text of "this Basic Law," as enacted in 1949...
was to ensure that the establishment of any dictatorship
Dictatorship
A dictatorship is defined as an autocratic form of government in which the government is ruled by an individual, the dictator. It has three possible meanings:...
in Germany would be clearly illegal; in legal practice the clause was used by plaintiffs at the Federal Constitutional Court challenging constitutional amendments that allowed Germany to form part of the European Union
European Union
The European Union is an economic and political union of 27 independent member states which are located primarily in Europe. The EU traces its origins from the European Coal and Steel Community and the European Economic Community , formed by six countries in 1958...
, unsuccessfully claiming that those amendments would affect the eternal principle of sovereignty of the people.
Honduras
The Constitution of HondurasConstitution of Honduras
The Political Constitution of the Republic of Honduras was approved on 11 January 1982, published on 20 January 1982, amended by the National Congress of Honduras 26 times from 1984 to 2005, and 10 interpretations by Congress were made from 1982 to 2005. It is Honduras' twelfth constitution since...
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." This unmodifiable article has played an important role in the 2009 Honduran constitutional crisis
2009 Honduran constitutional crisis
The 2009 Honduran constitutional crisis was a political dispute over plans to rewrite the Constitution of Honduras, which culminated in a coup d'état against Honduran President Manuel Zelaya by the Honduran military...
.
Ireland
There are several examples of entrenched clauses which ultimately failed in their objectives, since their protections were undermined in unintended ways. The Irish Free State Constitution was required in parts to be consistent with the 1922 Anglo-Irish TreatyAnglo-Irish Treaty
The Anglo-Irish Treaty , officially called the Articles of Agreement for a Treaty Between Great Britain and Ireland, was a treaty between the Government of the United Kingdom of Great Britain and Ireland and representatives of the secessionist Irish Republic that concluded the Irish War of...
, including an oath of allegiance and a representative of the Crown. The checks to protect this were removed by, for example, the Irish taking control of advice to the Governor-General
Governor-General of the Irish Free State
The Governor-General was the representative of the King in the 1922–1937 Irish Free State. Until 1927 he was also the agent of the British government in the Irish state. By convention the office of Governor-General was largely ceremonial...
, and when the Senate
Seanad Éireann (Irish Free State)
Seanad Éireann was the upper house of the Oireachtas of the Irish Free State from 1922–1936. It has also been known simply as the Senate, or as the First Seanad. The Senate was established under the 1922 Constitution of the Irish Free State but a number of constitutional amendments were...
proved obstructive, its abolition.
Malaysia
Another example of entrenchment would be the entrenching of portions of the Malaysian Constitution related to the Malaysian social contractSocial contract (Malaysia)
The social contract in Malaysia refers to the agreement made by the country's founding fathers in the Constitution. The social contract usually refers to a quid pro quo trade-off through Articles 14–18 of the Constitution, pertaining to the granting of citizenship to the non-Bumiputera of...
, 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
Malay people
Malays are an ethnic group of Austronesian people predominantly inhabiting the Malay Peninsula, including the southernmost parts of Thailand, the east coast of Sumatra, the coast of Borneo, and the smaller islands which lie between these locations...
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
May 13 Incident
The 13 May Incident is a term for the Sino-Malay sectarian violences in Kuala Lumpur , Malaysia, which began on 13 May 1969...
of racial rioting in 1969, Parliament
Parliament of Malaysia
The Parliament of Malaysia is the national legislature of Malaysia, based on the Westminster system. The bicameral parliament consists of the House of Representatives and the Senate. The King as the Head of State is the third component of 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 specifies the Malay language
Malay language
Malay is a major language of the Austronesian family. It is the official language of Malaysia , Indonesia , Brunei and Singapore...
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
Conference of Rulers
The Conference of Rulers in Malaysia is a council comprising the nine rulers of the Malay states, and the governors or Yang di-Pertua Negeri of the other four states...
— a non-elected body comprising the rulers of the Malay states and the governors of the other states.
South Africa
Another example of a failed entrenched clause was in the South Africa Act, the initial constitution of the Union of South AfricaUnion of South Africa
The Union of South Africa is the historic predecessor to the present-day Republic of South Africa. It came into being on 31 May 1910 with the unification of the previously separate colonies of the Cape, Natal, Transvaal and the Orange Free State...
. The constitution's entrenched clauses protected voting rights
Suffrage
Suffrage, political franchise, or simply the franchise, distinct from mere voting rights, is the civil right to vote gained through the democratic process...
, including those of some Coloured
Coloured
In the South African, Namibian, Zambian, Botswana and Zimbabwean context, the term Coloured refers to an heterogenous ethnic group who possess ancestry from Europe, various Khoisan and Bantu tribes of Southern Africa, West Africa, Indonesia, Madagascar, Malaya, India, Mozambique,...
s, but they lost their votes after the Government packed the Senate and Supreme Court with its sympathisers.
Turkey
Article 4 of Part 1 of the Constitution of TurkeyConstitution of Turkey
This article relates to a current event. See also the Turkish constitutional referendum, 2010The Constitution of the Republic of Turkey is Turkey's fundamental law. It establishes the organization of the government and sets out the principles and rules of the state's conduct along with its...
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 States
As examples of inadmissible constitutional amendments, Article Five of the United States ConstitutionArticle Five of the United States Constitution
Article Five of the United States Constitution describes the process whereby the Constitution may be altered. Altering the Constitution consists of proposing an amendment and subsequent ratification....
contains two entrenched clauses. One clause prohibited any constitutional amendment regarding the international slave trade. This clause expired in 1808. The other clause, still in effect, states that "no State, without its Consent, shall be deprived of its equal Suffrage in the Senate". This has been interpreted to require unanimous ratification of any amendment altering the composition of the United States Senate
United States Senate
The United States Senate is the upper house of the bicameral legislature of the United States, and together with the United States House of Representatives comprises the United States Congress. The composition and powers of the Senate are established in Article One of the U.S. Constitution. Each...
.
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. The clause does not appear to be self-entrenched; that is, it does not, by its express terms, forbid its own amendment or repeal. So it is possible that one could proceed by first repealing the clause and then abolishing equality in the Senate through a subsequent amendment .
The Corwin Amendment
Corwin amendment
The Corwin Amendment is a proposed amendment to the United States Constitution passed by the 36th Congress, 2nd Session, on March 2, 1861, in the form of House Resolution No. 80...
(1861), prohibiting a constitutional amendment with respect to slavery
Slavery
Slavery is a system under which people are treated as property to be bought and sold, and are forced to work. Slaves can be held against their will from the time of their capture, purchase or birth, and deprived of the right to leave, to refuse to work, or to demand compensation...
, might have become another entrenched clause had it become part of the U.S. Constitution.
Company law
Provisions may also be entrenched in the constitutions of legal bodies. An example is in the memoranda and articles of a company limited by guaranteeCompany limited by guarantee
In British and Irish company law, a private company limited by guarantee is an alternative type of corporation used primarily for non-profit organisations that require legal personality. A guarantee company does not usually have a share capital or shareholders, but instead has members who act as...
, in which the principles of common ownership
Common ownership
Common ownership is a principle according to which the assets of an enterprise or other organization are held indivisibly rather than in the names of the individual members or by a public institution such as a governmental body. It is therefore in contrast to public ownership...
may be entrenched. This practice can make it almost impossible for the company's members to dissolve the company and distribute its assets among them. This idea has more recently been extended in the UK through the invention of the community interest company
Community interest company
A community interest company is a new type of company introduced by the United Kingdom government in 2005 under the Companies Act 2004, designed for social enterprises that want to use their profits and assets for the public good...
(CIC) which incorporates an asset lock.
Other references
- Schwartzberg, Melissa. "Against Entrenchment". Retrieved November 6, 2006.
- Suber, Peter. Paradox of Self-Amendment. Retrieved February 1, 2007.