Entrenched clause

Anentrenched clauseorentrenchment clauseof aconstitutionis a provision that makes certain amendments either more difficult or impossible to pass. Overriding an entrenched clause may require asupermajority,areferendum,or the consent of the minority party. The termeternity clauseis used in a similar manner in the constitutions ofBrazil,theCzech Republic,Germany,Greece,India,Iran,Italy,Morocco,Norway,andTurkey,but specifically applies to an entrenched clause that can never be overridden. However, if a constitution provides for a mechanism of its own abolition or replacement, like theGerman Basic Lawdoes in Article 146, this by necessity provides a "back door" for getting rid of the "eternity clause", too.

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

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

Africa

Algeria

TheAlgerian Constitution of 2016contains clauses about the numbersand the duration of the presidential term.

Egypt

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

This clause failed to block the2019 amendmentsthat replaced the hard two-term limit for presidents with a consecutive one, and the modification of the term's duration from four to six years. The article also failed to block a new article from being added that excludes incumbent presidentAbdel Fattah el-Sisifrom the two consecutive terms constraint, enabling him to run for a third term.

Morocco

In theConstitution of Morocco,eternity clauses exist that ensure certain provisions cannot be amended, including the role ofIslamin the nation's law, and the role of theKing of Moroccoin law.

South Africa

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

Tunisia

TheTunisian Constitution of 2014prohibits amending the constitution to change the duration of a presidential term or the maximum number of terms an individual can serve.

Americas

Brazil

Entrenched clauses of theConstitution of Brazilare listed in Article 60, Paragraph 4:

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

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

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

Canada

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

Honduras

TheConstitution of Hondurashas 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 played an important role in the2009 Honduran constitutional crisis.

United States

Article Vof theUnited States Constitutiontemporarily shielded certain clauses in Article I from being amended. Thefirstclause in Section 9, which prevented Congress from passing any law that would restrict the importation ofslavesprior to 1808, and thefourthclause in that same section, a declaration thatdirect taxesmust be apportioned according to the state populations, were explicitly shielded from constitutional amendment prior to 1808.

Article V also shields thefirstclause of Article I, Section 3, which provides for equal representation of the states in theUnited States Senate,from being amended.This has been interpreted to require unanimous ratification of any amendment altering the composition of the 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. Alternatively, Article V theoretically could be amended to remove such an entrenched clause designation, and then the clause could be amended itself.

TheCrittenden CompromiseandCorwin Amendment,both proposed in the months leading up to theCivil Warbut never passed, would have enshrined slavery in the Constitution and prevented Congress from interfering with it.

Asia and Oceania

Australia

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

TheCommonwealth Constitutionis entrenched as it may only be amended by referendum; the amendment must gain the support of a majority of Australian voters nationwide, plus a majority of voters in a majority of states. These provisions are specified insection 128.The Imperial Parliament's power to amend it in Australian law was limited by theStatute of Westminster Adoption Act1942and terminated by theAustralia Act1986.

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 theAustralia 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.

India

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

Indonesia

Article 37 on Chapter 16 of theConstitution of Indonesiagoverns the constitutional amendment procedure, yet it also specifies that the status ofIndonesiaas aunitary stateis unmodifiable. TheMinistry of Home Affairs,theMinistry of Defenseas well as theMinistry of Foreign Affairsis also stated within the Constitution to not be dissolvable.

Iran

The final Article of theConstitution of the Islamic Republic of Iran,Art. 177, ensures that particular aspects of the Constitution are unalterable. These include the Islamic character of the government and laws, the objectives of the republic, the democratic character of the government, "the absolute wilayat al-'amr and the leadership of the Ummah", the administration of the country by referendum, and the role of Islam as the state religion.

Malaysia

Another example of entrenchment would be the entrenching of portions of theMalaysian Constitutionrelated to theMalaysian social contract,which specifies that citizenship be granted to the substantialChineseandIndianimmigrant populations in return for the recognition of a special position for the indigenousMalaymajority. 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 asunset clause.However, after theMay 13 incidentof racial rioting in 1969,Parliamentpassed the Constitution (Amendment) Act 1971. The Act permitted criminalisation of the questioning of Articles 152, 153, 181, and Part III of the Constitution.

Article 152 designates theMalay languageas the national language of Malaysia; Article 153 grants the Malays special privileges; Article 181 covers the position of theMalay 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 byde 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 theConference of Rulers— a non-elected body comprising the rulers of theMalay statesand the governors of the other states.

New Zealand

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

However, Section 268 is not itself protected by this provision, so a government could legally repeal Section 268 and go on to alter the entrenched portions of law, both with asimple majorityin Parliament.

Turkey

Article 4 of theConstitution of Turkeystates 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."

Europe

Bosnia and Herzegovina

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

Czech Republic

Article 9 of theCzech Constitution,which concernssupplementing and amendingthe Constitution, states that "the substantive requisites of the democratic, law-abiding State may not be amended". This provision was invoked in 2009 when theConstitutional Court of the Czech Republicstruck down aConstitutional Actadopted to invoke a one-off early legislative election. The disputed Act was judged to be an individual decision in violation of then-effective constitutional procedure regulating early elections.

The Constitution also contains an explicit eternity clause whereby theConstitutional Courtis the ultimate arbiter of the effect ofEuropean lawon the Constitution.

Estonia

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

France

TheFrench Constitutionstates in Title XVI, Article 89, OnAmendmentsto the Constitution, "Therepublicanform of government shall not be the object of any amendment "thus forbidding the restoration of themonarchyor theempire.

Germany

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

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

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

TheParlamentarischer Rat(Parliamentary Council) included the eternity clause in its Basic Law specifically to prevent a new "legal" pathway to a dictatorship as was the case in theWeimar Republicwith theEnabling Act of 1933andArticle 48 of the Weimar Constitution.

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

Unlike theWeimar Constitution,which made human rights only an objective, the eternity clause and Articles 1 and 20 make specific demands of "all state authority" regarding "human rights" (that is, "the basic rights" guaranteed in "this Basic Law" ) and have established specificlegislative,executiveandjudicialorgans in "the constitutional order" of "this Basic Law", each with separate functions bound by thelaw.These are "the basic principles" of thedemocratic rule of law(German:Rechtsstaat) and theseparation of powers,which are principles endorsed by threeUnited Nations resolutions.

See also:Liberal democratic basic order

Greece

The Greek eternity clause is Article 110 of theGreek Constitution.This article states that every article of theConstitutioncan be revised by theParliament,with the exception of the fundamental ones, which establishGreeceas aparliamentary republicand those of articles 2 paragraph 1, article 4 paragraphs 1, 4 and 7, article 5 paragraphs 1 and 3, article 13 paragraph 1 and article 26.These fundamental articles include:

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

Ireland

TheConstitution of the Irish Free Statewas required in parts to be consistent with the 1922Anglo-Irish Treaty,including theOath of Allegianceand theGovernor-General.The checks to protect this were removed by, for example, the Irish taking control of advice to the Governor-General, and when theSenateproved obstructive, its abolition.

In debate surround2018 relaxation of abortion lawsthere were proposals to entrench certain aspects of the legislation, which was deemed unconstitutional.An attempt to overturn the34th Amendment to the constitutionon the basis that amendments were impermissible if they contradicted other provisions of the constitution was rejected by the Court of Appeal.

Italy

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

Portugal

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

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

Spain

Most of the body of theConstitution of Spaincan be modified by a three-fifths majority of both chambers of theCortes Generales,or an absolute majority of theSenateand a two-thirds majority of theCongress of Deputiesif the first method of approval fails.

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

Constitutional amendments cannot be introduced duringwartimeor astate of emergency.

United Kingdom

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

Notions of entrenchment have emerged in consideration of a number of constitutional statutes, including theParliament Acts 1911 and 1949.(SeeR (Jackson) v Attorney General[2005] UKHL 56.)

Andrew Blick, Senior Lecturer in Politics at King's College London, argues that the use of asupermajorityrequirement for theHouse of Commonsin theFixed-term Parliaments Act 2011represents a move towards entrenched clauses in the UK Constitution.Nevertheless, after failing to secure the required supermajority for an election in 2019, the government passed theEarly Parliamentary General Election Act 2019,which only required a simple majority, to override the act and call anearly general election.The Fixed-term Parliaments Act 2011 was subsequently repealed and replaced by theDissolution and Calling of Parliament Act 2022,which deleted the supermajority requirement altogether and reinstated the government's power to call an election at will.

Company law

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

See also

• Basic structure doctrine
• Peremptory norm
• Rigid constitution

Further reading

• Schwartzberg, Melissa."Against Entrenchment".Retrieved November 6, 2006.
• Suber, Peter.Paradox of Self-Amendment.Archived2006-09-04 at theWayback MachineRetrieved February 1, 2007.

External links

• Eternity Clauses: Never say never!by Dr. Michael Hein,Katapultmagazine, 4 May 2015.