Procedure of Amendment
in Constitution: A Global
Perspective
SUBMITTED BY:
KUNAL KADIAN
24MLL10078
What is Constitution?
A Constitution is the supreme law of the
land. It embodies the fundamental
choices made by a country and its
people that establish the basis for social
and political life.
However while intending to be both
foundational and enduring,
constitutions are not intended to be
immutable, if they are to endure they
must be able to respond to changing
needs and circumstances of the
country.
Amendments may be made
to :
Adjust the constitution to the environment within which the
political system operates
Correct the provision that have proved to be inadequate over
time
Further improve constitutional rights or to strengthen democratic
institutions
The amendment process should be in such a way that it allows the
constitution to be changed for the public good but prevents it from
being changed for self interested, partisan, destructive and short
term motives.
Points that may be taken into
consideration by drafters while drafting
provision for amendment:
Who should be able to initiate constitutional amendment?
Who should be involved in amending constitution?
Should the public be directly or indirectly involved in the process?
Should all provisions be subject to same amendment procedure?
What special provisions should be in place for federal states?
Should some provisions be unamendable?
Amendment Formula
Supermajority rule in the legislature
A referendum
Double decision rules
The reference to constituent states, provinces, regions or other
territorial units of polity
Legislative supermajority
It refers to the provision where legislature needs to pass an
amendment law with a greater majority than is required for
ordinary legislation.
Various degrees of a qualified majority are in place, ranging from
absolute majority(50% of all members plus one) to a four- fifths
majority of all members.
The principle is that by requiring larger than the usual majority,
the incumbent government cannot, unilaterally approve
amendments.
References to the people
Considering the constitution as the legal and political foundation
of a state, its legitimacy needs to be derived from the people.
This reflects the idea that people are a source of sovereignty
which is a basic concept of democratic government.
This doctrine is mirrored by the real involvement of the people in
constitution-making exercises, be it through a direct election of
the members of the constitutional assembly at the beginning of
the process.
References to states,
provinces or units:
Only by the consent of units or by a specified majority of them.
(Canada, India, South Africa and the United States) or through
referendums in each of the states (Australia and Switzerland).
Apply only to certain parts of the constitution, those dealing with
the federal system or respective powers of levels of government.
Further considerations
Who should be allowed to initiate a constitutional
amendment?
Generally vested in the legislature, and the process usually mirrors
the process for proposing and enacting ordinary laws.
Should all amendments be subject to the same amendment
procedure?
To identify the right balance between rigidity and flexibility in
constitutional amendments, constitutions offer different thresholds
for different parts of the constitution. This may help provide stability,
certainty and strong guarantees for some parts of the constitution
that need to be more rigid, while allowing flexibility in other areas.
Continued
Should some provisions be unamendable?
Some constitutions also place substantive limitations on
amendments through a clause that prohibits the amendment of
certain provisions.
Examples of immutable provisions include: national unity
(Indonesia), the status of religion (Tunisia)
Thank
you